Stanford Center for Internet and Society

Michael Savage has one of the most popular shows on the radio. He doesn't hesitate to speak his mind, no matter how controversial his views. He should be applauded for that. Many find those views highly offensive, and level fierce criticism at him. They should be applauded for that. That is the dialogue of free speech. The right to speak and the right to criticize speech you don't like are equally important.

You'd think that Savage of all people, who depends on free speech to do what he does for a living, would understand that. Yet when the Council on American-Islamic Relations ("CAIR") put up a web page last year documenting overtly hostile remarks Savage made about Muslims on his show and urging advertisers to boycott Savage's show, Savage tried to shut down CAIR's criticism of him. He sued CAIR, claiming the snippets of Savage's show CAIR used to document Savage's statements and support CAIR's criticism of him infringed his copyrights in his show. If fair use protects anything, it protects the right to use portions of a copyrighted work to criticize it, so Savage lost his case quickly and decisively.

But the attack goes on. Brave New Films created a similar video and posted it to YouTube. That video likewise documents Savage's comments and urges viewers to do something about them. Brave New Films also created a website, www.nosavage.org to support its efforts to speak out against Savage and the comments he made. Late last month, Savage's nationwide syndicator, Original Talk Radio Network, complained to YouTube about BNF's video. In response, YouTube removed it pursuant to the DMCA.

The Fair Use Project, along with co-counsel Bingham McCutchen, have now sued OTRN and Savage to recover damages for the misrepresentations made in connection with the wrongful removal of the video from YouTube, and declaratory and injunctive relief to vindicate BNF's right to say what it said about Savage in the video, and prevent the suppression of the video in the future.

Not all campaign controversies fill the national stage. But this one should get national attention for being so abusive.

Mark Blanchfield is challenging George Amedore for his New York state assembly seat. Last week, Blanchfield released political ads that include excerpts of an interview Amedore apparently gave to the Albany Business Review in connection with an award he received from the Business Review last May. In that interview, Amedore says he doesn't "look at [his] Assembly position as [his] job."

Blanchfield's radio and TV ad lambast Amedore for this comment. In response, the Business Review turned its lawyers loose on Blanchfield, who received a letter accusing him of copyright infringement and threatening legal action if he does not pull his ads off the air.

This is an abuse of copyright law that should trouble everyone, and cannot be allowed to persist or spread. Copyright is not a tool to censor criticism, and cannot be allowed to become a device to suppress statements that public officials wish they had not made.

What Blanchfield did here is a textbook example of fair use -- and an important one at that. Blanchfield is using a small portion of the video to criticize the views expressed in it by Amedore and to expose to the voters Amedore's attitude about the job he's been elected to do; moreover, Blanchfiled's use of this material will have no conceivable impact on whatever market there might be for the video the Business Review made (assuming there is a market for it in the first place).

After both the state and federal courts rejected the attempts of Yoko Ono Lennon and EMI Records to enjoin the showing of Expelled: No Intelligence Allowed on the ground it used a 15-second fragment of John Lennon's Imagine, all of the plaintiffs in both cases have now withdrawn their claims and dismissed their cases.

This is the right result to be sure. There should never have been any doubt the filmmakers who were sued here had every right to use a short segment of a song for the purpose of criticizing it and the views it represents. But the right result came far too late. The mere pendency of these cases caused the film's DVD distributor to shy away from releasing the full film -- the version that includes the Imagine segment. So the film goes out on DVD on October 21 in censored form, illustrating the damage that even an unproved and unsupported infringement claim can do.

At the same time, the result here -- great but imperfect -- is a fantastic lesson in how we might start to solve the fair use dilemma. We launched the Documentary Film Program with Media Professional Insurance and Michael Donaldson to help solve a critical problem: fair use rights are expensive to use because they require lots of lawyer time. Media Pro took the visionary step of insuring fair use risks. We and Donaldson agreed to mediate these risks by vetting the fair use issues ahead of time. (We do it for free; Donaldson has to make a living.) Donaldson reviewed Expelled, and Media Pro insured it. When its producers got sued, we agreed to defend it pro bono, alongside the producers' regular counsel at the Locke Lord firm. Together we won, kept the cost to Media Pro minimal, and thus demonstrated that the fair use problem can be solved, in many (but perhaps not all) cases by teamwork like this.

I'm proud to have been a part of it.