Thursday, May 21, 2009

Founding Bloggers prevails over CNN as YouTube restores 'Tea Party' video critique

In a victory for political bloggers over abusive copyright claims, YouTube has re-posted a video produced by the conservative site Founding Bloggers that had been removed following an April 17 DMCA notice from CNN. Observers across the political and copyright spectrum have criticized CNN's takedown of the video, which incorporates 1 minute 20 seconds of CNN footage in order to criticize the interviewing tactics of reporter Susan Roesgen at an April 15 "Tea Party" protest in Chicago -- a paradigmatic example of a non-infringing fair use.

The restoration of Founding Bloggers' video -- along with 3,000 comments -- comes a full 34 days after CNN sent its notice, and 28 days after Founding Bloggers disputed CNN's claim by submitting a DMCA counternotice. In the meantime, numerous others, led by Patterico, had re-posted the video, thwarting CNN's attempt to silence criticism of its Tea Party coverage. CNN could have sued Founding Bloggers to block re-posting, but -- wisely -- declined.

So is this incident over? Not necessarily. As I've previously explained:
Even after the re-posting, the target of a DMCA notice can sue the sender of a bogus takedown notice under 17 U.S.C. § 512(f), which provides a cause of action for "knowingly materially misrepresent[ing] under this section...that material or activity is infringing." (This is what happened in Lenz v. Universal.) In theory, CNN could also still sue Founding Bloggers for copyright infringement. But I consider that highly unlikely, for at least three reasons: 1) CNN would almost certainly lose, given the strength of Founding Bloggers' fair use defense; 2) even if CNN won, such a "victory" would actually harm its interests as a news organization that makes fair use of others' video countless times every day; and 3) by failing to go after the numerous others who have re-posted the same video, CNN has signaled that it wants this all to just go away -- quietly. The question remains: will Founding Bloggers let them?
In its post announcing the video's restoration, Founding Bloggers says, "The only questions left are…what now? What comes next?" We'll be watching...


  1. You have taken a very analytical approach to this controversy. But the question beyond "We'll be watching" is: should Founding Bloggers sue CNN to create a precedent? As you've explained, they have a compelling case. If they choose to sue, it could shape internet political discourse for a generation and free bloggers to comment without fear of large media bullying. Do you encourage them to commit the resources to take a stand for free expression?

  2. I really don't feel it's my place to tell FB whether they *should* sue. Being involved in a lawsuit can be a major hassle, and it would be a bit presumptuous of me to tell them they should take on that burden.

    That said, I believe FB's video is a clear example of fair use. Having a court say so would be a powerful deterrent to other copyright owners who may think they can suppress political speech by sending a DMCA notice without regard to whether the target is really infringing.

  3. I doubt that a lawsuit would be successful. Everyone involved in this case was a private party; there's no public entity that needs to be compelled into a higher standard of behavior. And, while a great deal of outside pressure was clearly involved, you can't argue that YouTube _didn't_ follow its own stated rules.

    Indeed, by putting forth a lawsuit, you'd effectively be saying that every time YouTube re-posts something that was DMCA'ed, YT is declaring that the DMCA complainant is now vulnerable to a lawsuit! I could see YT becoming even less likely to repost material reported as infringing, simply to avoid getting involved in legal actions.

  4. @DensityDuck. If they did start a 512(f) lawusuit, YouTube wouldn't be the defendant. CNN would be. YouTube may be subpoenaed to provide evidence, but I don't see why this should be an excuse for them to ignore the DMCA put-back requirement.


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