Obama Citizenship

Web Site Files DMCA Counter-Notice Against CNN; FCC to Review ?Gutter Talk? Complaints

By Phil

(Pic from GaltsList blog ) For those who are not yet aware, CNN correspondent Susan Roesgen executed a journalistic hit-job at the main Chicago tea party on April 15, 2009. The web site FoundingBloggers.com (see the same link) had recorded additional footage of Ms. Rosegen having a bit of a “come to Jesus” meeting with a few other tea partyers (here’s an updated video of the saga to date).

After receiving tons of attention across the Internet, CNN then decided to demand that FoundingBloggers.com remove their follow-up video because it contained what CNN claims is use of their own footage beyond “fair usage” and filed a Digital Millenium Copyright Act (DMCA) notice against the bloggers.

On April 23, 2009, FoundingBloggers.com filed a counter-notice to CNN:

Yesterday, we officially filed our DMCA counter-notice in the matter of CNN?s censorship of Founding Bloggers?coverage of the Chicago Tax Day Tea Party. A copy of the counter-notice is available at Ben Sheffner?s blog Copyrights & Campaigns, where he?s been devoting much of his valuable energy toward documenting and publicizing what CNN has tried to do in this case.

In his current post on the story, Ben makes the following interesting point:

Founding Bloggers could also sue CNN. Section 512(f) of the DMCA allows the target of a takedown notice to seek damages, including costs and attorneys? fees, against the sender for ?knowingly materially misrepresent[ing] ? that material or activity is infringing.? While such cases are difficult to win, one court has held that the sender must take into account fair use when deciding whether to issue a takedown notice. Founding Bloggers can also sue for a declaratory judgment, asking a court to issue an order stating that its video is a non-infringing fair use.

MUCH more to come.

The CopyrightsAndCampaigns blog — to which the above quote refers — also mentioned the following about this situation:

As I’ve previously argued, the video at issue — which includes about 1 minute, 20 seconds of CNN footage of reporter Susan Roesgen conducting contentious interviews with protesters at an April 15 Chicago rally, as well as about 2 minutes, 30 seconds of footage shot by Founding Bloggers — is a non-infringing fair use of CNN’s material; thus I believe the DMCA notice was improper. CNN owns copyright in its own footage, but its rights are limited by the Copyright Act’s fair use provision, which specifically mentions “criticism, comment, [and] news reporting” as protected uses that are “not an infringement of copyright.” Founding Bloggers’ incorporation of the CNN footage was clearly for the purpose of criticizing and commenting on Roesgen’s reporting, which has come under heavy fire in the conservative blogosphere (and even from a former CNN reporter) for her hostile interactions with tea-partiers.

So what happens next? Here’s how YouTube explains the process:

After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement…. After we send out the counter-notification, the claimant [here, CNN] must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on YouTube. If we receive such notification we will be unable to restore the material. If we do not receive such notification, we may reinstate the material.

In my experience, YouTube does indeed re-post videos 10 business days after receiving a counternotice, unless the copyright owner initiates a lawsuit.

So, CNN could sue Founding Bloggers for copyright infringement — but I consider that unlikely. CNN’s lawyers know the law of fair use, and that they would be unlikely to prevail in an infringement suit against Founding Bloggers. And remember: CNN — like all TV news organizations — relies heavily on fair use every day, using clips from competitors, and even YouTube, in its own broadcasts. So even a “victory” over Founding Bloggers would result in long-term damage to CNN’s own interests.

Founding Bloggers could also sue CNN. Section 512(f) of the DMCA allows the target of a takedown notice to seek damages, including costs and attorneys? fees, against the sender for “knowingly materially misrepresent[ing] … that material or activity is infringing.” While such cases are difficult to win, one court has heldthat the sender must take into account fair use when deciding whether to issue a takedown notice. Founding Bloggers can also sue for a declaratory judgment, asking a court to issue an order stating that its video is a non-infringing fair use.

As a practical matter, it may not matter all that much whether Founding Bloggers’ particular copy of its video is re-posted by YouTube. Urged on by Patterico, numerous others have re-posted the same video, making it exceedingly difficult for CNN to scrub the net of the offending video. …

Here’s Founding Bloggers’ counternotice, prepared by its attorneyDavid Adler of Adler & Franczyk in Chicago:

… Founding Bloggers’ Marcus does not seem like the type walk away quietly; he told me he’s motivated by “principle,” and not just the desire to get his video re-posted. If this dispute does make it to court, I wouldn’t bet against him.

In similar news, WorldNetDaily is reporting that the Federal Communications Commission will be reviewing complaints filed against CNN and MSNBC:

The Federal Communications Commission will review complaints it receives over the on-camera gutter talk of anchors for CNN and MSNBC that came as they condemned the tea party movement in which hundreds of thousands of Americans met on Tax Day to protest not just taxes but a runaway government digging the nation into trillions of dollars in debt.

A spokesman for the federal agency confirmed to WND today that there is a standard procedure for evaluating complaints over obscenities, but he could not confirm there would be any response until the concerns had been reviewed.

The complaints already are being delivered. A WND reader who asked that a name not be included in this report confirmed: “I called the FCC to make a complaint. They are opening an investigation, and he suggested I get everyone I know, who saw or heard the language, innuendos and slurs to contact the FCC, and complain. They need a number of complaints to be able to do anything.” …

WND contacted CNN, Anderson Cooper and his guest analyst, David Gergen, to ask for comment on the controversy but received no response. Others critical of the comment, however, were quick to condemn it.

The reality of “old media” is that “Internet 2.0″ (the blogosphere, Twitter, Facebook, and other technologies) is here to stay and is a viable force of accountability to reporting — especially such shoddy reporting, including these two pieces that couldn’t even get my site correct — which is no longer squashable.

Then again, I think CNN thought that FoundingBloggers.com was going to proverbially “roll over and play dead.” Obviously, all it takes is for anyone to simply take a stand to battle against this kind of bullying.

-Phil

Full post as published by The Right Side of Life on April 25, 2009 (boomark / email).