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:
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Before the free culture movement even existed:

Mockingbirds are the true artists of the bird kingdom. Which is to say, although they’re born with a song of their own, an innate riff that happens to be one of the most versatile of all ornithological expressions, mockingbirds aren’t content to merely play the hand that is dealt them. Like all artists, they are out to rearrange reality. Innovative, willful, daring, not bound by the rules to which others may blindly adhere, the mockingbird collects snatches of birdsong from this tree and that field, appropriates them, places them in new and unexpected contexts, recreates the world from the world. For example, a mockingbird in South Carolina was heard to bend the songs of thirty-two different kinds of birds into a ten-minute performance, a virtuoso display that served no practical purpose, falling, therefore, into the realm of pure art.

- Tom Robbins, Skinny Legs and All, 1990

Having read that, can you honestly feel that the law ought to ban outright artists like Girl Talk and sound advice? We are strangling the innovative, willful, daring mockingbirds of our time.

Crossposted to Civil Disobedient

EFF has won another important free speech case this is great news. EFF is quickly becoming the ACLU of the online world.

The rest is from LawGeek, Jason Schultz:

Several months ago, radio personality Michael Savage sued the Council on American-Islamic Relations (CAIR) for copyright infringement (plus some RICO charges) because they rebroadcast just over four minutes from his radio show on their website in order to point out his use of anti-Muslim messaging, encourage advertiser boycotts, and raise awareness and money for CAIR’s activities. CAIR (represented by EFF and Tom Burke of DWT) moved to dismiss claiming among other things that the use of the clip was a fair use.

Today, Judge Illston of the Northern District of California dismissed the suit, agreeing that the use of the material for commentary and criticism was a classic fair use.

Specifically, Illston held:

The complaint affirmatively asserts that the purpose and character of [CAIR's] use of the limited excerpts from the radio show was to criticize publicly the anti-Muslim message of those excerpts. To comment on [Savage's] statements without reference or citation to them would not only render [CAIR's] criticism less reliable, but be unfair to [Savage]. Further, it was not unreasonable for defendants to provide the actual audio excerpts, since they reaffirmed the authenticity of the criticized statements and provided the audience with the tone and manner in which plaintiff made the statements.

Check out the opinion here

Thanks EFF!

Previous posts on this case:

Copyright v. Free Speech: Savage v. CAIR (fair use analysis)

EFF and DWT defend CAIR against Michael Savage

Raccoon w/ Lemur eyes

Seesmic just enabled Creative Commons licensing! Seesmic added all 6 main licenses and CC Attribution 3.0 is the new default license for videos uploaded.

Joi already already blogged about this and posted up a video. If you head over to Jon Phillip’s or Joi’s blog and you can see also the video that Loic shot with Jon at the CC office in San Francisco.

They also hosted a great video discussion with fair use and copyright expert Michael Donaldson, one of the authors of the Code of Best Practices in Fair Use for Online Video. To find the videos add Michael Donaldson as someone you are following.

The new GIRL TALK record Feed The Animals is out under a Creative Commons BY-NC License. The album is a great remix/sampling piece with several creative tracks.  The album is even released using a pay what you want model, /cheer another example of a patron model in action.  If you choose download the album for free GT ask why:

I may donate later
I can’t afford to pay
I don’t really like Girl Talk
I don’t believe in paying for music
I have already purchased this album
I don’t value music made from sampling
I am part of the press, radio, or music industry
Other reasons

I hope GT releases stats on download statics. I picked “I may donate later” because I had never heard GT’s music. I will be back to pay $10 later today.

I strongly recommend downloading a copy before someone shuts down this creative work with a copyright suit. The status of GT’s copyright in the work is very suspect in the US due to its standing as an unauthorized derivative work. Fair use could, although not likely, authorize it but that is a discussion for another post.

Note:  I, Brian Rowe, pledge to donate $20 and 10 hours of legal research/work to the GT legal defense effort if someone tries to kill this album.  A takedown would = censorship of a work that could never exist in a pure permissions culture.  The sheer volume of rights clearance needed for this work would employee a graduating class from Harvard Law for the next 5 years strait and would cost more then $100 Million. Assuming none of the works sampled are orphaned then you might get an authorized version by the time it has lost much of its cultural significance and reference.  When buying music we should be paying artist, not an army of lawyers.

Update: When you pay $13.00 GT send you a copy of the CD too!  Payment made.

The Associated Press’ recent takedown requests have caused a lot of fear around reusing AP’s content online. This post is designed to give people a few tips for reusing content that do not include accepting the AP’s ludicrous licensing terms.

Best practices for using your rights:
1. Rewrite headlines - Use some creativity in your reuse.  There is no need to copy the usually dry AP headlines directly.  Facts are not copyrightable; use the same facts to build a new headline.
2. Add value - Fair use is about more than just a copyright infringement defense.  If you are adding value with comments or notes your use is more likely to be deemed fair.
3. Only take what is necessary - If the AP publishes a 500 word article and you only need 100 words to make your point, only use 100 words.  Taking more then what is needed lowers your chances of fair use.
4. Transform the work - this is similar to adding value except that it often includes uses that the original author may not have intended. Transforming the use into a public good such as a search function or a public place for discussion takes the work beyond its original scope and may limit direct competition between your use and the original market for the use.
5. Be Critical - Fair use is the First amendment codified in the copyright act. Critical negative speech has much more protection then mere copying or positive commentary. If the AP is unlikely to authorize the use because of negative commentary, the use is more like to be protected.
6. Give credit - The AP will find your use of their work one way or another. Giving credit and linkbacks to the original source will make you look better to a jury. If you come off as hiding your use and plagiarizing it will look much worse.

We are not lawyers and this is not legal advice. Do not trust us with the wellbeing of your dogs, first born children, prized infringement-free websites, etc.

If the AP decides to enter into RIAA style abusive lawsuits with bloggers, the only advice I can give is to join EFF and fight back. Do not let the AP kill the internet! Use your first amendment rights to guarantee rights for future generations.

Japan may become the third nation to add Fair Use to their copyright laws. Israel was the second late last year. This is another sign that Fair Use is being asked to do the heavy lifting for legalizing the copying needed to let the internet flourish.

The Intellectual Property Strategy Headquarters, led by Prime Minister Yasuo Fukuda, has decided to make a Japanese version of a U.S. copyright law stipulation that allows for the “fair use” of copyrighted works for criticism, analyses, media reporting and research.

The decision was made to make it easier for venture companies to start new businesses, such as developing a rival to Google. The government intends to revise the Copyright Law to include a fair use stipulation as early as next year.

The next challenge is how to make Fair Use easy to use by the masses. Focusing on best practices and building communities that can educate each other in practical fair use tips could go a long way to remove Fair Use from the privy of lawyers and deliver it into the hands of users. Additional orgs like EFF that fight for users rights are needed to back up Fair Use claims. Fair Use is by no means perfect it often takes a lawyer and deep pockets to defend the rights Fair Use grants, real implementation of international Fair Use will need strong support.

PS: It is ironic that Viacom, in the lawsuit with Google, is trying to take the life out of Fair Use just as the rest of the world is starting to adopt it.

Read more at Asahi.com