When you believe in free speech you need to fight for it and that is what HorsesAss.org, a Seattle based political blog is doing. HA posted a short 39 second clip (with added comments) as part of a scathing post aimed at Washington Attorney General Rob McKenna and the Washington Association of Realtors (WAR). This clip is clearly fair use. The clip was not created with copyright in mind and copyright is being used to censor the free speech use.
Before I go into the 4 Fair Use factors Watch the clip yourself:
Online Videos by Veoh.com
Fair Use is codified in section 107 of the Copyright Act, here is the relevant portion:
…the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
1. Character of use News and political commentary are very highly protected especially if the work is transformative, which the subtext is. HA 1 – WAR 0
2. The original (infringed) work Promotional political advertisement (propaganda?) is much less protected. HA 2 -WAR 0
3. Amount used Only a small portion of the work was used and only the part needed for the news article – HA 3 – WAR 0
4. Effect on market value of the work the work has little to no market value to effect, it is being given way with no intent to sell ever (there should be a no harm no infringement rule). HA 4 – WAR 0
Flawless Victory! Okay, maybe I am over simplifying the factors a little (I would not use this in a brief), if you want an in depth look at the factors is a similar case check out Savage v. CAIR, but this is still a clear case of Fair Use and a response where copyright is being used to censor speech.
Here is David Goldstein, founder of HorsesAss.org response:
I downloaded from the Washington Association of Realtors’ (WAR) website. It was by any measure of the term, “fair use,” as I couldn’t very well comment on McKenna’s statement for political purposes, without illustrating my commentary with a piece of the video itself. Still, that didn’t stop the chickenshits at WAR from seeking to violate my First Amendment rights by having YouTube pull down my clip. …
So I’ll tell you what… if you folks at WAR really believe that I’ve violated your copyright, and you’re not just playing lazy legal games attempting to prevent a broader audience from hearing McKenna’s lies and blatant suckupery… then I suggest you sue me. That’s right… prove your case in court, and sue me for everything I’ve got. I’ve only got one significant asset, the equity in my home, so go ahead and try to take that away from me in defense of your handful of crooked members who specialize in doing exactly that. You gotta at least love the irony.
Because if you don’t sue me—and win—I’m gonna continue to post constitutionally protected political commentary using video clips from your website. You know, like this one:
Remember, Fair Use is your First Amendment right embodied in the copyright act! Be prepared to fight for those rights.
PS: I would love to see the takedown letter on this video.
PPS: I am not a practicing lawyer, and this summary does not constitute official legal analysis or advice, merely flawlessly reasoned argument by a layperson obscenely familiar with copyright law.