This week, along with our co-counsel, EFF filed a motion for judgment on the pleadings asking a U.S. District Court judge to throw out a copyright infringement suit brought by talk show host Michael Savage against the Council on American-Islamic Relations. Savage sued CAIR in December, alleging that CAIR infringed the copyright in his show when it posted on its web site brief excerpts from Savage's radio program in order to criticize Savage's remarks. Savage also added a federal racketeering claim stemming from that alleged copyright infringement.
CAIR's use of the radio program excerpts is, of course, protected under the fair use doctrine. The Copyright Act specifically makes clear that third parties may utilize copyrighted works for purposes of commentary or criticism, as CAIR did in this case. This is not, however, the first time that a critic attempted to use copyright law to punish a vocal critic, and it won't be the last. EFF routinely defends online speakers faced with such abuses of copyright law. Over the last few years, EFF has defended, for example:
- "Rational Response Squad" member Brian Sapient against famed "paranormalist" Uri Geller who misused the DMCA (Digital Millenium Copyright Act) to force YouTube to pull down a critical video exposing Geller's methods.
- Two Swarthmore college students who reposted internal Diebold e-mail messages documenting problems with Diebold's voting machines and who were subsequently targeted by a DMCA takedown notice from Diebold.
- Stephanie Lenz, a mother who posted a short video of her young son dancing to a Prince song, against an abusive DMCA takedown notice sent by Universal Music, Prince's label.
- Videographer Kyle Machulis who was threatened with a DMCA takedown notice by the creator of the "Electric Slide" dance after posting a concert video that contained a ten-second segment of audience members attempting to do the dance.
- Columnist and commentator Michelle Malkin who, after criticizing hip hop artist Akon for his objectionable lyrics during a video podcast, was hit with a DMCA takedown notice of her own.
Our most analogous recent case was our representation of pseudonymous blogger "Spocko" who criticized the hosts of San Francisco-based KSFO-AM, utilizing clips from various KSFO talk shows. KSFO corporate parent ABC sent a baseless threatening letter to Spocko's ISP (1and1.com) who, unfortunately, pulled down Spocko's site before EFF stepped in and got Spocko back up and running. A year after sending a letter to ABC pointing out that Spocko's use of the clips was protected under the fair use doctrine, we're still waiting for a response.
As we pointed out last January, while radio personalities certainly have a right to air their views, the First Amendment says nothing about a right to advertiser-subsidized speech. Even if advertisers choose to pull their ads because a critic has a more convincing argument even if advertiser revenue dries up completely and shows are canceled it doesn't necessarily follow that anyone's free speech rights have being violated. Using the legal process to silence critics, instead of participating further in the oftentimes rough-and-tumble "marketplace of ideas," is the antithesis of what the First Amendment and the Copyright Act stand for. Savage, with his own daily radio program, would certainly seem able to compete in that marketplace without the aid of the legal process.