Wednesday, October 21, 2009

NPR makes copyright claim over anti-same-sex-marriage ad; another political fair use fight

Another day, another news organization trying to suppress political speech it doesn't like through a suspect copyright claim.

This time the victim is Stand for Marriage Maine, a group that supports Question 1, a Nov. 3 ballot measure that would overturn the Maine legislature's legalization of same-sex marriage. And the culprit is National Public Radio, which has sent DMCA notices to YouTube and other sites, objecting to the inclusion of 20 seconds from a 2004 NPR story into a 30-second SFMM TV spot. The ad uses the NPR content in support of its argument that legalization of SSM would result in schoolchildren being taught about gay sex.

While the issue isn't quite as much of a slam dunk as Perez Hilton's copyright claims over the use of 3 seconds of his video blog in an anti-SSM ad by a different group, I think SFMM has a very strong fair use claim here. The use is non-commercial (it is purely political); NPR's work is factual, not fictional; the portion used is brief; and such a use will have no significant effect on the market for NPR's work. And, importantly, the First Amendment is at its apogee in the context of a political campaign. See Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971) (First Amendment "has its fullest and most urgent application precisely to the conduct of campaigns for political office"). Here's NPR's cease-and-desist letter; here's the letter from SFMM attorney Barry Bostrom rejecting NPR's copyright claims. (Sound familiar?)

NPR's attempted defense of its copyright claim only proves its lack of merit. Here's what Dana Davis Rehm, NPR's senior vice president of marketing, communications and external relations, told WMTW:
NPR very carefully analyzed the use that Stand for Marriage Maine and their public relations firm Schubert Flint has made of NPR's 2004 news story. We determined that it does not meet fair use standards and that it constitutes copyright infringement. They have exceeded fair use standards by co-opting NPR's content for virtually the entire length of their political ad. What we are seeking to do here is to protect NPR's valuable reputation as a trusted and unbiased source of news. We don't allow use of our content for advocacy or political purposes by any group or person.
Rehm is simply wrong on the law. First, she gets the fair use analysis completely backwards when she argues that SFMM's use of the NPR content comprising "virtually the entire length of their political ad" weighs against a finding of fair use. What matters is the percentage of the copyright owner's work that is taken, not the percentage of the use that is comprised of the copyright owner's work. See 17 U.S.C. § 107(3) (relevant measure is "the amount and substantiality of the portion used in relation to the copyrighted work as a whole") (my emphasis); Peter Letterese And Associates, Inc. v. World Institute Of Scientology Enterprises, 533 F.3d 1287, 1314-15 (11th Cir. 2008) ("[T]he amount and substantiality of the portion used is measured with respect to the 'copyrighted work as a whole,' not to the putatively infringing work.") (quotation marks omitted); NXIVM Corp. v. Ross Institute, 364 F.3d 471, 480 (2d Cir. 2004); Patry on Copyright § 10:141 ("The statutory language clearly directs courts to evaluate the substantially of the taking in relation to plaintiff's work, not defendant's."). The fact that the NPR content is heard through about 2/3 of the ad is irrelevant to the fair use analysis. What matters is that SFMM used only 20 seconds of an NPR report that was apparently several minutes long. Update: according to SFFM attorney Bostrom, "the ad used 20 seconds of a nearly 6:56 minute news piece, or 4.8%." NPR's letter contends it was 25 seconds; I don't think the difference is material.

And Rehm's argument that the aim of NPR's copyright claim was to "protect NPR's valuable reputation as a trusted and unbiased source of news" and statement that "We don't allow use of our content for advocacy or political purposes by any group or person" further aids SFMM's fair use case, and undermines NPR's argument. "Protecting [one's] reputation" is not a cognizable copyright interest, at least in the US, where we don't recognize moral rights. Copyright is about providing financial incentives for creators, not for providing a legal club for anyone -- even a purportedly "trusted and unbiased source[s] of news" -- to shut down uses of their works that they don't like. And the fact that NPR would refuse to allow any such use of its content in a political ad strengthens the case for fair use. See Campbell v. Acuff-Rose, 510 U.S. 549, 585 n.18 (1994) ("being denied permission to use a work does not weigh against a finding of fair use"); Liebovitz v. Paramount Pictures Corp., 137 F.3d 109, 114 n.3 (2d Cir. 1998). Rehm's words may come back to haunt NPR if this matter is ever litigated.

NPR's takedowns are especially harmful because even if SFMM sends DMCA counternotices, sites generally won't repost the videos until 10-14 business days have elapsed, in order to maintain their safe harbor from an infringement claim. See 17 U.S.C. sec. 512(g). Thus the videos won't reappear until well after the Nov. 3 election. So NPR's copyright claims, even if meritless, will achieve their intended, speech-silencing, effect. (We complained about this to YouTube while I was an attorney on the McCain campaign last year, to no avail.)

Lastly, kudos to the Queerty blog, which strongly supports SSM, but nonetheless opposes NPR's use of copyright law to squelch political speech:
As despicable as S4MM is, the group very likely did nothing illegal. They used a limited portion of NPR's news report that did not adversely affect NPR financially. Not only does S4MM not have to seek permission to use it, they should be able to do it again if they so please. It's the equivalent of a movie studio "borrowing" a few lines of copy from an Entertainment Weekly movie review to convince you to see their film. S4MM used a few lines (of audio) from NPR to try to bolster their case to voters.
It's easy to complain when your own side is being abused; it shows real intellectual honesty to stand up for your bitter opponent when they're in the right.

Here's the SFMM ad, which was apparently re-posted by someone unknown. If NPR takes this version down, it will be squelching legal analysis, in addition to core political speech. I wonder how Nina Totenberg would feel about that?


  1. Ben, I don't think that your argument that "the fact that NPR would refuse to allow any such use of its content in a political ad strengthens the case for fair use" has any basis in law. The citation to Campbell v. Acuff-Rose certainly doesn't support the proposition. All Campbell says is that the fact that the copyright owner might refuse to license a work does not create a higher hurdle for the defendant seeking to establish fair use. That does not mean that such a refusal should lower or eliminate the hurdles. Indeed, the most reasonable interpretation should be that such refusal is completely irrelevant to the question of fair use. To hold otherwise would mean that any time a copyright owner chose to exercise their exclusive rights by withholding a license, that the putative licensee would then have the right to take the work anyway because the licensor said no. This is essentially the same argument made by file sharers who say that their downloading of pirated songs should be fair use because they wouldn't have paid for the songs anyway so the copyright owners didn't lose a sale.

  2. Robert --

    I agree that Campbell isn't precisely on point. But I do think that NPR's statement about its refusal to license such uses bolsters the fair use defense for at least 2 reasons. First, it shows that it is not attempting to vindicate a legitimate copyright interest; instead, it is merely acting to suppress speech, because it doesn't like to be associated with partisan political messages. I can understand how NPR doesn't like that, but it's not legitimate to use copyright to achieve its aim. Second, the refusal to license is relevant to the analysis under the 4th factor, i.e., harm to the market. By saying that there is no market for licensing of its content to political advertisers, it's essentially conceding that SFMM hasn't harmed its licensing market, which weighs in favor of fair use.

    Finally, I don't think the analogy to file-sharing works. There obviously is a market for licensing songs (if not always in the manner that file-sharers would like), and, as numerous courts have held, making those songs freely available on the web without compensation to the copyright owners harms the licensing market. By contrast, NPR has said explicitly that there is no licensing market for this kind of use. And the First Amendment concerns are obviously much more relevant in the context of political speech than in "sharing" entire copies of songs.

  3. Two questions:

    Since NPR is government-funded, who owns its works? If the government does, when do the works enter the public domain? Certainly they have no stronger case against Fair Use.

    To what degree does NPR police use of its works? IS NPR content used by other groups without the same level of concern on the part of NPR? Is this difference based on the ideology of the "infringing" group? Reports today are that there are many examples of NPR content on YouTube, almost entirely from the Left. How would this affect the case?

  4. @gully_foyle:

    NPR does receive a (relatively small) portion of its funding from the federal government: However, it's still a private organization, and owns its own copyrights.

    This is the first I've ever heard of NPR making a copyright claim. I can't get inside their minds to determine whether their actions here are motivated by a concern that any political group would use their content, or whether the fact that it was used by this particular group played a role.

  5. Hi, Ben. This is Tom Sydnor from PFF. Thanks for another great post, but I wanted to pass along a caveat from personal experience. All of these fair-use-on-You-Tube cases become far more complex when you factor in the YouTube Terms of Service. I have blogged about this here:

    In short, to post a “remix” of, (or an excerpt from), someone else’s work on YouTube, you must: 1) grant worldwide, royalty-free commercial use rights to YouTube and its parent companies; 2) grant worldwide, royalty-free rights to create derivative works to YouTube and its parent companies; 3) represent that you either own the copyrights in the third-party content, or that your use has been authorized by the owner of the copyrights in the third-party content.

    I think that these Terms of Service are pretty fair—the distribution services YouTube provides are valuable and they must be monetized, or they will cease. But they do severely limit fair-use arguments. For example, a case like Lenz can look bad for the copyright owners until you factor in the YouTube Terms of Service. Then, it looks, well, very different.

    I never realized any of this until I confronted these issues myself. I was planning to post on YouTube an excerpt from a third-party audiovisual work, (one that involved the song “I Will Survive,” a bus, and an actor playing Jesus), in order to critique a law professor in my capacity as a 501(c)(3) think-tank analyst.

    In theory, all of the fair-use factors were aligned in my favor. But then I read the Terms of Service and realized that not only did they gut my fair-use defense, I would be committing fraud by agreeing to them. I decided not to proceed.

    I suspect that this is why sites like YouTube are trying to build businesses based upon authorization, not fair use.

    Keep up the great work. --Tom

  6. Hi Ben,

    You have made the point a number of times that copyright misuse is not a cause of action. It is, instead, an affirmative defense one can raise to a claim of infringement.

    But this is just one more example of why copyright misuse SHOULD be a cause of action. If the Courts don't re-interpret the way that copyright law is implemented or if Congress doesn't re-write copyright law, then copyright law has the potential to distort the democratic process.

    I know you had a taste of this when you were working for the McCain campaign. But I can easily picture it getting worse. Imagine a truly dirty tricks political campaign sending lots of totally bogus takedown notices against the campaign vidoes of their opponent in the week before the election. Suppose the DMCA filers don't have ANY copyright interests in the videos and that they are lying through their teeth when they claim that the videos are infringing on their work. Of course, such operatives would sign phony names to these bogus DMCAs and use throw-away email accounts to try to cover their tracks.

    Now maybe YouTube (or whatever hosting site the videos were on) would investigate and restore the falsely DMCAd videos quickly... or maybe they wouldn't. I would expect YouTube to act promptly and make the correct call in a high profile Presidential election. But what if this involved a local election for a school board, or a state assembly member? Could we excpect low-profile videos removed by bogus DMCAs to be restored in a timely fashion? I honestly don't know the answer to this.

    Making copyright misuse a cause of action could serve as a deterrent to such shenannigans.

  7. To Tom Sydnor,

    I'm not a lawyer, but I doubt YouTube's TOS should have any impact on Lenz vs. Universal Music Group.

    I fail to see how the TOS will affect the analysis of whether Lenz's use was fair use or not. I also don't see how it affects her case against Universal (which is, as far as I know, the first attempt to establish that there CAN BE a cause of action for abuse of copyright.) The TOS is an agreement between Lenz and YouTube. It should not affect the relationship between Lenz and Universal since Universal is not a party to that agreement.

    Moreover, Youtube's TOS is a contract of adhesion. It is an extremely one-sided contract and Lenz had no opportunity to negotiate its terms. She shouldn't have to give up her right of fair use to post on the world's most important video site. I have my doubts that a court would enforce the clause that apparently destroys Fair Use.

  8. @themaskedanalyst:

    While there's no affirmative cause of action for copyright misuse, the statute, at 17 USC sec. 512(f), does explicitly provide a cause of action against "Any person who knowingly materially misrepresents ... that material or activity is infringing" by sending a bad-faith DMCA notice.

  9. Ben:

    Thanks for another great post. I think you could argue that Campbell implicitly finds that a rejection of a license request favors a finding of fair use in certain circumstances. I have heard many people argue that Campbell represented the battle between two scholars and their law review articles: Posner's "When is Parody Fair Use" and Level's "Toward a Fair Use Standard." People usually argue that the Court accepted Level's work and rejected Posner's but I don't read it that way. I know the Court didn't cite Posner, but there are many, many reasons the Court might shy away from citing him explicitly.

    Posner's arguement that parody remedies market failure because often times for political reasons a licensor cannot authorize a parody seems to me to run like a ribbon through the opinion.

    Tom: In addition to the takedown notice, NPR sent SFM a cease-and-desist. So there are fair use issues at play for at least some of this dispute.

  10. "Moreover, Youtube's TOS is a contract of adhesion. It is an extremely one-sided contract and Lenz had no opportunity to negotiate its terms. She shouldn't have to give up her right of fair use to post on the world's most important video site. I have my doubts that a court would enforce the clause that apparently destroys Fair Use."

    The fact that a contract may qualify as a contract of adhesion doesn't automatically mean its provisions are unenforceable. The plethora of user-generated video sites available, all offering potentially differing terms and conditions, tends to negate the notion that no other alternatives existed to entering into this particular agreement.

    Additionally, there are several circuits that have indeed held that parties can contract out of fair use, which makes sense because it is really nothing more than the default rule set by Copyright Law.

  11. Ben,

    I probably should have thought a bit more before I wrote my post. Of course, 512 (f) would PROBABLY be a deterent to someone filing a TOTALLY bogus DMCA under a false name against a video which they had no copyright interest at all. But other than this extreme example, I don't think 512(f) has much teeth.

    I say this for two reasons. First, I have seen the DMCA misused time and time and time again to censor others on YouTube and elsewhere. Most of the times involve videos where the speech is petty and trivial, but this is certainly not always the case. I've seen fundamentalist Christians try to use it to suppress videos on evolution. I've seen Scientologists use it against their critics. I've seen Uri Gellar (or the company he controls) use it to remove a video demonstrating that what he purports to be real ESP-type skills could be reproduced by any clever magician.

    And second, it is EXTREMELY hard to successfully sue under 512(f). I can't think of too many successful lawsuits. There is Diebold v. OPG, and the reason they won is the way the District Court for the Northern Disctrict of California intepreted the word "knowingly". 512 (f) states:

    "Any person who KNOWINGLY materially misrepresents under this section . . . that material or activity is infringing. . . shall be liable for any damages including costs and attorney's fees . . ."

    The district court used an OBJECTIVE standard to interpret the word "KNOWINGLY". The Court held:

    "A party is liable if it 'knowingly' and 'materially' misrepresents that copyright infringement has occurred. 'Knowingly' means that a party actually knew, should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations."

    Unfortunately, the Ninth Circuit Court of Appeals seemed to overule this approach in Rossi v. Motion Picture Association of America. There, they interpreted the word "KNOWINGLY" under a subjective approach. The Court stated:

    "A copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake."

    The Court determined that what was important was not whether the copyright owner acted reasonably when filing a DMCA complaint. What was important was the copyright owner's state of mind.

    Now, if someone files a false DMCA against a video they have no copyright interest using a false name and fake email address, that is pretty good evidence that they knew what they were doing is illegal and if someone discovered who was behind the DMCA, they could in principle be successfully sued.

    But short of that, it is going to be damn hard to successfully prosecute a 512 (f) case.

    Suppose someone working for Candidate A DMCAs a video by Candidate B because it uses a miniscule portion of candidate A's campaign video in order to criticize Candidate A. Suppose that Candidate B's video's use was OBVIOUSLY fair use. Suppose it wasn't even a close call that it was OBVIOUS fair use. Well, all the DMCA filer has to do is swear up and down that he didn't think it was fair use when he sent the DMCA--and he will probably get off scott-free.

    I might feel otherwise if you could point to a slew of 512 (f) cases that have been successfully prosecuted. But I'd like to see some mechanism in addition to 512 (f) that could be brought to bear when copryight law is misused for the purpose of censorship.

  12. @Anonymous re Contract of Adhesion.

    You wrote:

    "The plethora of user-generated video sites available, all offering potentially differing terms and conditions, tends to negate the notion that no other alternatives existed to entering into this particular agreement.

    Additionally, there are several circuits that have indeed held that parties can contract out of fair use, which makes sense because it is really nothing more than the default rule set by Copyright Law."

    YouTube is different from other video sharing sites because of its dominance in the video sharing market. YouTube claims to be (and is) the World's largest Town Hall for political speech. It is, as far as I know, the only site where the President and Congressional leaders have set up shop to communicate with their constituents. Here, for example, is a video of Congressional leaders asking their constituents to provide video feedback to them via YouTube:

    YouTube is unlike any other video sharing site. I'd love to see a court rule on whether YouTube's contract of adhesion can make me forfeit my right of fair use if I use a clip from a Congressman's video in order to criticize him.

  13. Ben,

    I'm sorry, but I just don't buy your argument. First, I think that you are tailoring the market too narrowly. In the case of NPR, there is, at least in theory, a market for the use of their material in advertising, and while any copyright owner is able to pick and choose which campaigns they choose to license, you can't circumscribe their rights by narrowing down the particular thing that is being advertised to say that no market exists for that use.

    Your argument is also way over-broad because it neglects that there is a spill-over from one sort of use to another. For example, The Doors are famous for the fact that all four group members (or their estates) must unanimously agree whenever their music is licensed, and two members of the band want to license their music for commercials while the other two have publically stated that they would never license their music in commercials. The two members who favor licensing have strenuously argued that their bandmates are leaving millions on the table by their refusal to license, but that argument doesn't sway the refusing members who argue that money isn't everything -- using the songs in ads would adversely affect their artistic credibility (with, one could argue, potentially adverse effects on record sales). But by your argument, all a putative advertiser needs to do is to request a sync license from The Doors, get turned down and they they could use the song without a license because there is no market harm. Yet the potential market for the licensing of The Doors music in commercials is undeniably huge, and it could even be argued, is made even larger by their steadfast refusal, at least up till now, to grant such rights.

    If a copyright owner finds a particular form of use to be one that he objects to, your theory would automatically mean that by the copyright owner exercising his exclusive right to not license, that the potential licensee would automatically get the right to use it under fair use without permission. This exception would essentially gut all copyright law given that the right no longer becomes exclusive if you choose to exercise it.

  14. Robert:

    I am certainly not saying that "by the copyright owner exercising his exclusive right to not license, [] the potential licensee would automatically get the right to use it under fair use without permission." I think there's a vast difference between the Doors situation you describe, which is about commercial use, and the situation here, which is about a purely non-commercial, political use, where First Amendment concerns are paramount. I believe a copyright owner has the right to say, "I will never license my song for commercial uses." But I do not believe a copyright owner can use copyright to squelch political discussion, as NPR has done here.

    It's also important to keep in mind that there are four fair use factors that must be weighed; this isn't all about the licensing market. For example, I would not think SFMM would have a good fair use argument were it simply running the entire 6:56 NPR interview, without commentary. But here, the use is transformative, factual, consists of only a very small percentage of NPR's work, and (as we've been discussing), has no real market impact.

  15. I think that any lawyer who brings a DMCA takedown notice against a cut an dried OBVIOUS fair use should be reported to his respective ethics board which should investigate and discipline accordingly. Although not a legal remedy for the party subject to the takedown, a few such widely published cases would help deter what appears to be rampant bad-faith lawyering in this area of practice.

    At the very least, any such DMCA takedown notice, which is essentially an ex-parte proceeeding should be sunject to the heightened standard of fairness and affirmative disclosure that is required b y many state ethics board rules for such situations.

    In gray-areas cases, the takedown notice should affirmatively state that the sender has made a fair-use analysis and has a good-faith belief that the use does not meet the criteria for fair-use because of reasons x, y, and z. At least the ISP would have some reasoning behind the notice and would have a better chance of agreeing or disagreeing with the notice.

    Finally, I think that the precedent of "Knowingly" falsly bringing a DMCA takedown notice should be challenged frequently and often. The EFF should make a policy of bringing a counter-suit in every single case of a bogus takedown notice, even if its just a form-letter pleading, and even if the damages are de-minimus.

  16. It was never clear why you complained to YouTube about the obligations imposed by DMCA Sec. 512(g). YouTube certainly wasn't the entity that negotiated the 10-14 day window, nor were they the ones with the election certificates who voted that provision into law.

    If Sen. McCain felt strongly about the issue, he has had more than enough time since then to introduce a bill.

  17. @Anonymous 12:50:

    Our point on the campaign was that the DMCA does not impose "obligations" on YouTube to robotically take down videos in response to a notice from a copyright owner. YouTube is free to evaluate the notice, and if it concludes that the video is non-infringing (e.g., because it's a fair use), it risks little or nothing by immediately re-posting the video. In fact, that's exactly what it did in the case of a recent takedown notice from Perez Hilton:

  18. What's missing in your argument is the way in which NPR's content is used. Listening to the ad, it sounds as if NPR is endorsing S4MM's position. That distortion crosses the line of legitimate fair use.

  19. @Vroo:

    I don't think the ad implies NPR's endorsement at all. It clearly indicates that it's taken from an "interview" conducted by NPR, i.e., not NPR's own position. Moreover, I'm unaware of any cases holding that the allegedly misleading nature of the defendant's work is relevant to the fair use analysis. (False endorsement could be the basis of a separate Lanham Act claim, but, again, I don't think that flies here.)

  20. Ben, you might be interested to know that both the NPR takedown that you discussed in this post and CBS's Takedowon of the McCain campaign ad have made it into the recently-established EFF Hall of Shame.

  21. Ben-- A portion -- about 5 of the 20 seconds -- of the NPR interview was not the voice of the NPR correspondent, but the voice of someone she was interviewing. Do you think NPR has any copyright interest in that 3rd party content?

  22. @Anonyous 7:58:

    NPR owns copyright in the overall recording, but protection for a simple recording of someone else's voice would be thin. In the fair use analysis, the part of the recording that's just another person's voice would be purely factual, weighing in favor of a finding of fair use.


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