The three C’s
Originally posted 2009-04-19 17:02:19. Republished by Blog Post Promoter
CNN, copyright and censorship?
It is a kind of censorship, I think we can say by now, to cynically use the copyright laws to shut down embarrassing publication of obviously non-infringing works. It’s particularly ugly when media outlets do it, though.
Yet that’s what Patterico says is going on right now with a video that showed a CNN reporter being a little too partisan at a “tea party,” formerly available on YouTube (most recently reposted here). Let’s cut to the legal mumbo-jumbo, which is what we’re all about here after all — as Patterico puts it, “As to the validity of the copyright claim, let me turn over the megaphone to Ben Sheffner of Copyrights and Campaigns”:
CNN does own copyright in its own news footage and, as a general matter, has the right to demand its removal from YouTube. However, as to this particular video, I think Founding Bloggers has a very strong fair use defense. The purpose for Founding Bloggers’ posting of the CNN footage is crystal clear: to comment on and criticize CNN’s reporting on the “Tea Party.” Such a use is right in the heartland of the fair use doctrine; the statute specifically mentions “criticism, comment, [and] news reporting” as protected uses that are “not an infringement of copyright.” 17 U.S.C. § 107. To quickly run through the four fair use factors as they apply here: 1) the use is transformative (for critical comment); 2) the CNN footage is factual, not fictional, and was previously broadcast; 3) the amount used is small in relation to the whole CNN broadcast; and 4) any effect on the market is minuscule (and if fewer people watch CNN because this video causes them to think less of its coverage, that’s simply not cognizable harm). Many fair use cases are difficult, close calls–but, given the facts as I know them, this is an easy one.