This week EFF and Davis Wright Tremaine acting as attorneys representing CAIR filed a motion for summary judgment, asking a U.S. District Court judge to throw out a copyright infringement suit brought by talk show host Michael Savage. 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’s copyright claims were a clear abuse of the copyright act in an effort to quell critical speech. I am thrilled to see EFF represent CAIR in this claim. This is another in a long list of examples where EFF has proven that they are the leaders in the fight for free speech online. Other examples include Swathmore Student v. Diebold.

Matt Zimmerman, the EFF attorney who wrote the Spocko Fair Use letter directed to ABC, was the principle attorney for EFF on the case. He does a great job of expanding the Fair Use claim in the Spocko letter to fit this case while directing the pleading to a 9th circuit court. The motion also contains some interesting information on RICO claims that are out side the IP scope of FFIP’s expertise but still an informative read.

Thanks for standing up for for our rights!

Related Links:
CAIR’s Motion for Judgment on the Pleadings
FFIP’s December Article: Free Speech v. Copyright, Michael Savage v. CAIR

1. Increase our blogging – Last year we had 150 blog posts ranging from on site blogging at legal and technology conferences to issue statements on DRM and Fair Use. This has been one of our most successful outreach tools and will continue to grow over the next year. At the end of 2007 Riana Pfefferkorn a 2L at University of Washington Law and , has joined our blogging effort as a guest blogger. We hope to find more guest bloggers in 2008.

2. We would like to add a section on FFIP for videos while experimenting with a monthly video cast on current issue related to IP. My personal strength is public speaking, and I want to try capturing that for an online medium.

3. Move from Blogger to WordPress – Blogger has served us well but does not fit our mission. Open source community based tools represent the values of FFIP better. Both Sarah and Brian have transitioned to WordPress for our personal blogs and the process has been very positive.

4. Improve Case Law and Philosophy sections – We need to add cases like KSR International v. Teleflex, INS v. AP, and Michael Savage v. CAIR. We have decided not to internally host a case law database, but instead to link to outside resources like AltLaw and Wikipedia while adding our own comments and resources on the FFIP site. On the philosophy side we need to add Wealth of Networks, Infringement Nation and a pleathera of other writings on the topics to the list. We may even start a wiki to take suggestions for resources to add.

5. More Partnerships – Last year we worked with Defective By Design, CC and EFF with great success. Defective by Design runs the best protests while CC and EFF have been extremely useful for providing educational materials for teaching people about their rights and options to opt out of copyright. We will be reaching out to more organizations to help educate more people about the need to expand Fair Use and reform patents.

6. New logo – *holds head in hands* this is long over due. I fail at graphic design. I can give public speeches, code and even write Fair Use defense legal letters, but when it comes to artistic online skillz we need help. We need a new logo.

I should stop here before going making the list too long… These goals are manageable and can be accomplished with your help.

FFIP has been running for two and a half years now, I am grateful for all the help we have had from law professors, other orgs and volunteers. I look forward to another year bring the copyfight to the people who will fight for our rights in the digital age.

Nationally syndicated conservative radio host Michael Savage filed a lawsuit against CAIR, the Counsel on American-Islamic Relations. The lawsuit claims that the Muslim group has misused copyright material from his show for fund raising and propaganda. This claim is a blatant abuse of the copyright act to stop criticism that the First Amendment protects through Fair Use.

CAIR is using clips from Savage’s radio show to illustrate what they call “bigoted statements.”
A remix of some of those statements can be found on CAIR’s Website at:
http://www.cair.com/audio/savage_102907.asp. This link was included in an action alert from November 16th asking CAIR’s constituents to contact AT&T to pull advertising from Savages radio program.

It is clear that these clips are copyrighted by Savage, but the real legal question here relates to CAIR’s possible Fair Use defense. Fair use is an embodiment of the First Amendment in the copyright act.

Fair Use under17 U.S.C. § 107 of the copyright act is a four factor balancing test that includes:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

In this case many of the factors are going to weigh in favor of CAIR.

Factor #1 Purpose and charter of use

For factor one CAIR is a nonprofit 501(c)3 that is not trying to directly profit from Savage’s work. CAIR is using the clips as part of its education to constituents about Savages views and encouraging constituents to take action. CAIR may gain more members or donation from members based on Savages comments but this is not the type of use that should be considered as commercial because they are gaining only from criticizing Savage.

Criticism and Commentary are explicitly permitted under copyright law. “one office of the fair use defense is to facilitate criticism of copyrighted works by enabling the critic to quote enough of the criticized work to make his criticisms intelligible. Copyright should not be a means by which criticism is stifled with the backing of the courts. ” Chicago Bd. of Educ. v. Substance, Inc. 354 F.3d 624, 628 (2003)

This is a nonprofit educational criticism. Factor one is in CAIR’s favor.

Factor #2 Nature of the copyrighted work

This factor distinguishes types of material such as “informational” and “functional” works from “entertainment” works giving stronger protection to creative works. The courts often give less protection to news reports or television broadcast of current events. Savages radio talk show does cover current events and news related items, and the audio clips used by CAIR are directly relaveant to current events. Although it could be argued that Savage’s radio broadcast is mere entertainment with no news value, Savages own bio on his professional website describes Savage’s show as “brash commentary and unapologetic solution” to current political issues.

Factor two weighs in favor of less copyright protection due to the informational and functional nature of the clips used.

Factor #3 The amount and substantiality of the portion used.

This factor focus on the amount of a copyrighted work that is used relative to the entire copyrighted work. From both a quantitative and qualitative standpoint CAIR has only used a minimal portion of Savages radio show. The audio clip on CAIR’s website is less than 5 minutes in length. Savage’s radio program is on for a few hours every day with a total length of several hundred hours. Quantitatively the clip used is a very small portion of the over all work.

Additionally Savage himself has repeatedly asserted that the clip was taken out of context and was not representative of his general views on the show. Copyright protection should only be extended to a small portion of a work if it is the heart of the work. Here Savage’s own claim is that the clip is not the heart of his work.

Factor three weighs strongly in favor of CAIR and Fair Use.

Factor #4 The effect of the use upon the potential market for or value of the copyrighted work.

The final factor takes into account the financial effect on the market value of the copyrighted work. For this factor, it is important to note that the fact that the substance of the criticism may have lead to financial harm to Savage due to the withdrawal of advertisers is irrelevant. In Campbell v. Acuff-Rose Music, “when a lethal parody, like a scathing theater
review, kills demand for the original, it does not produce a harm cognizable under the
Copyright Act. Because ‘parody may quite legitimately aim at garroting the original,
destroying it commercially as well as artistically,’…” CAIR was specifically using the audio clip in conjunction with an action campaign designed to pressure advertisers to boycott Savage’s program. Paragraph 68 of Savage’s complaint refer to harm but only the type of harm that critic generates.

In the complaint Savage does claim finical harm based on CAIR’s possible use of the clips to raise funds, paragraphs 8, 13 and 22, for CAIR. The fund raising claim does not change the underlining analysis. One is alowed to make money off of Fair Use, in Campbell 2 Live Crew was a commercial entity using a portion of Roy Orbison’s song “Oh, Pretty Woman”for primarily commercial purposes and this did not preclude a Fair Use defense. If a for profit rap group can sell a derivative infringing copyrighted work for commercial purpose, a non-profit 501(c)3 that is not even selling the audio clips surely has a stronger defense of Fair Use when viewed in light of the strong critique CAIR is making.

This fourth factor in light of the critical nature of the use weighs in favor of CAIR and the possible fund raising activities related to CAIR’s use of the clips does not prevent a Fair Use finding.

In Summary all four factors are in favor of CAIR’s Fair Use defense of a copyright infringement claim by Savage. The nature of the use was for education, news, and critique. The type of work was current event related media critique. The amount of the copyrighted work was less then 5 minutes of several hundred hours of programing and not the heart of Savage’s radio program. The financial harm was purely related to the critical nature of the use. A finding for the Fair Use defense is appropriate in this case.

The First Amendment’s power to protect critical speech should not be limited by spurious copyright claims designed to quell unwanted speech.

Press Coverage:
Newsmax
Michael Savage’s website with a copy of the complaint

Credit: This Fair Use analysis has been heavily influenced by Matt Zimmerman’s letter to ABC concerning the take down of Spocko’s clips criticizing KSFO-AM on behalf of EFF.
Link to Spocko ABC Fair Use letter.