jimcyl (jimcyl) wrote in copyright,
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Black Box Voting, Dancing Babies, and Gay Marriage Ads

It should be old news by now, but the National Organization for Marriage ran an ad entitled "The Gathering Storm" in response to recent events in Iowa and Vermont. The final video, for those who don't want to actually watch it, contains a caption (at around the 18-second mark) stating "the stories these actors are telling are based on real incidents" and inviting viewers to visit NOM's.

The Human Rights Campaign's researchers dug up some interesting background on the video, including two audition videos that show actors standing in front of a green screen botching their lines. They in and of themselves are pretty damn funny.

Wired has reported (and posted the videos) that NOM has been sending notice and takedown demands to Youtube to keep the audition tapes off the Internet. This is hardly the first time that an organization has tried to use copyright law to silence its critics. In 2004, Diebold Election Systems lost (on summary judgment no less) a lawsuit by the Online Policy Group challenging its use of cease and desist letters to keep Swarthmore College students from posting internal Diebold memos that revealed the company's knowledge of flaws in its electronic voting software. The court held that "[n]o reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold's voting machines were proteced by copyright" and that Diebold had therefore violated the Digital Millennium Copyright Act by knowingly and materially misrepresented that they had a valid copyright claim. The court awarded OPG $125,000 in damages.

More recently, the same judge who issued the Diebold opinion ruled, in a case involving a notice and takedown demand involving a video of a baby dancing to a Prince song, that the poster of the video was entitled to proceed with a misrepresentation case against the record company because the label failed to consider whether or not playing the song in the video constituted fair use. Specifically, the judge stated:

[A] fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the owner must evaluate whether the material makes fair use of the copyright...

[I]n the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner’s ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review...

A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute. Requiring owners to consider fair use will help “ensure[] that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand” without compromising “the movies, music, software and literary works that are the fruit of American creative genius.”
 

Wired is reporting that "internet rebels are saving the videos with keepvid.com, and then uploading them back to YouTube when they're pulled." This is great for keeping the information necessary to discuss this issue in the public consciousness, but it ignores the fact that NOM is doing exactly what Diebold did - using the DMCA to silence its critics.

Instead of merely re-posting the videos to Youtube, someone should file a counter-notice and demand that Youtube replace the videos. It may take longer than just re-posting them, but it sends a message to NOM that they cannot misuse the law to keep the truth out of the public eye.

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