I've blogged before about the Savage v. CAIR lawsuit, in which the conservative talk show host claims that CAIR violated his copyright (and the Racketeer Influenced and Corrupt Organizations Act!) by posting and commenting critically on an audio clip from one of his shows, in which Savage makes all sorts of hateful and inaccurate claims about Muslims and the Islamic faith. To put it mildly, I disagree with Savage's position in the lawsuit -- it is a blatant attempt to misuse copyright law in order to squelch criticism.

Great news! The Electronic Frontier Foundation and Davis Wright Tremaine LLP are representing CAIR, and they have filed an answer and moved for "judgment on the pleadings," asking the court to dismiss the lawsuit because it is "simply a camouflaged defamation or disparagement claim dressed as bogus copyright and RICO claims . . . Savage's legal broadside specifically targets CAIR as a civil rights organization and its core political speech responding to and criticizing Savage's inflammatory political rhetoric." (from the EFF). The brief arguing in favor of dismissal is excellent. Its introductory argument on the copyright claim is worth reproducing here:

CAIR's use of limited audio excerpts from Savage's radio program is, without question, speech protected not only by the First Amendment but explicitly by the Copyright Act. 17 U.S.C. § 107; see Hustler Magazine Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1153-55 (9th Cir. 1986). The fair use doctrine exists precisely to prevent copyright holders from doing what Savage attempts here -- abusing a limited monopoly granted to encourage creativity to punish dissenters and to chill speech aimed at criticizing copyrighted works. For all his ironic appeals to the First Amendment, Savage asks this Court to punish CAIR for publicly criticizing the offensive content of his radio program. That CAIR's criticism might result in Savage losing popularity (and advertisers) is of no moment to either a free speech or copyright infringement analysis and indeed, should be expected in the marketplace of ideas that the First Amendment and Copyright Act strongly protect. As a matter of law, Savage's copyright infringement claim must be dismissed.

Brilliant argument. CAIR's lawyers have also chosen the right procedural mechanism for raising the affirmative defenses of fair use and the First Amendment. In a motion under Federal Rule of Civil Procedure 12(c) for judgment on the pleadings, unlike a motion to dismiss under Rule 12(b)(6), a court may consider affirmative defenses.

Thus, unless the court goes completely off track, CAIR should not run into the sort of shallow reasoning found in the 43SB.com case (all the buzz this week), in which the court refused to look beyond the plaintiff's ownership of copyright in its cease-and-desist letter and completely ignored the obvious fair use and First Amendment concerns. This kind of shallow legal analysis leads to a distorted picture of copyright law and, worse, it stacks the deck against speech, giving the benefit of the doubt to frivolous claims and making Internet speakers bear the burden of extended litigation. I look forward to the CAIR court's decision with anticipation -- Internet speakers certainly could use a clear, recent case to help fight back against copyright overreaching.