Fair Use

An Inter-Newspaper Cease-and-Desist Letter: My Trip to the Buffet of Wrong

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Fight at the Museum: London's National Portrait Gallery Takes Aim at U.S. Wikipedia User

The National Portrait Gallery in London has threatened to take legal action against a U.S. citizen who posted images of the gallery's paintings of rich, white, and dead British people onto Wikimedia Commons.

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Merrill Lynch to Financial Blogger: Don't Quote Our Bearish Reports

Felix Salmon of Reuters reports that the pseudonymous lead blogger behind the financial blog Zero Hedge received DMCA takedown notices for six posts that cited or excerpted from Merrill Lynch reports authored by Merrill's former chief economist, David Rosenberg.  According to Salmon, Zero Hedge is "an insider financial blog whose writers believe the worst of the mel

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Merrill Lynch v. "Tyler Durden"

Date: 

05/12/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

"Tyler Durden"; Zero Hedge

Type of Party: 

Large Organization

Type of Party: 

Individual

Publication Medium: 

Blog

Status: 

Pending

Disposition: 

Material Removed

Description: 

In May 2009, lawyers for Merrill Lynch sent cease-and-desist letters alleging copyright infringement to"Tyler Durden" of the financial blog Zero Hedge over six posts that cited or excerpted from Merrill Lynch reports authored by Merrill's former chief economist, David Rosenberg. According to Reuters, Zero Hedge is "an insider financial blog whose writers believe the worst of the meltdown is yet to come," and the Rosenberg reports jive with this bearish view of the economy.  

In a post about the takedown requests, Durden announced that he would take down the posts, primarily out of concern over the cost of hiring a lawyer, but he told Reuters that he hadn't yet ruled out consulting a lawyer. Because the disputed posts are down, it is impossible to tell how much of the Rosenberg reports Durden used.

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Threat Source: 

RSS

National Organiztion for Marriage v. YouTube Users

Date: 

04/01/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Various YouTube Users

Type of Party: 

Organization

Type of Party: 

Individual

Publication Medium: 

Website

Status: 

Pending

Disposition: 

Material Removed

Description: 

In April 2009, the anti-gay-marriage group National Organization for Marriage ("NOM") sent a number of DMCA takedown notices to YouTube, demanding that it take down clips of leaked audition outtakes from NOM's "Gathering Storm" advocacy ad, which had been uncovered by the Human Rights Campaign and circulated widely online.  It looks like NOM also sent DMCA takedown notices based on user parodies of the outtakes and/or the ad (e.g.), although many videos of this type are still available on the siteAccording to Wired's Threat Level blog, some YouTube users responded by "saving the videos with keepvid.com, and then uploading them back to YouTube when they’re pulled."

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National Organization for Marriage v. Maddow

Date: 

04/13/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

MSNBC; Rachel Maddow

Type of Party: 

Organization

Type of Party: 

Individual
Large Organization

Publication Medium: 

Broadcast
Website

Status: 

Pending

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Material Removed
Material Reinstated

Description: 

According to Wired's Threat Level blog, in April 2009 the anti-gay-marriage group National Organization for Marriage ("NOM") sent a DMCA takedown notice to YouTube, demanding that it take down a clip from MSNBC's Rachel Maddow Show.  In the clip, Maddow criticizes NOM's "Gathering Storm" advocacy ad, displays short excerpts from the ad and 40 seconds of leaked audition outtakes from the ad, which had been uncovered by the Human Rights Campaign and posted widely on video-sharing sites like YouTube. 

In response to the DMCA notice, YouTube pulled down the clip.

MSNBC apparently sent a counter notice, and YouTube put the clip back up.  Subsequently, Maddow commented on the DMCA takedown request and chided NOM on the air for using copyright law to silence critical commentary:

A cable news segment critical of an issue ad violates the copyright of the organization that made that ad? So you can pay to put it on TV, but I can't address its merits on TV?  Come now anti-gay-marriage people, I know your campaign is about how scared we should all be of gay marriage, but now you're scared of people talking about your stance on it?

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CMLP Notes: 

embeds for videos (needed each time you edit this entry)

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Miss Universe v. National Organization for Marriage

Date: 

05/04/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

National Organization for Marriage

Type of Party: 

Organization

Type of Party: 

Organization

Legal Counsel: 

Barry A. Bostrom - Bopp, Coleson & Bostrom

Publication Medium: 

Broadcast
Micro-blog
Social Network
Website

Relevant Documents: 

Status: 

Pending

Description: 

On May 4, 2009, counsel for Miss Universe L.P., LLP ("MUO") sent a cease-and-desist letter to the National Organization for Marriage ("NOM") complaining about an advocacy ad entitled "No Offense," which incorporates excerpts from the televised broadcast of the 2009 Miss Universe pagent.  The letter claimed that the ad violated MUO's copyright and objected to NOM broadcasting the ad on television and posting it on YouTube, Twitter, and Facebook.

According to NOM, the ad "highlights the efforts of same-sex marriage activists to silence and discredit pro-marriage advocates, calling them 'liars,' 'bigots,' and worse." It focuses on the controversy surrounding Miss California Carrie Prejean's answer to a question about gay marriage during the 2009 pageant. The footage that MUO objects to depicts Miss Prejean responding to a question from celebrity blogger and pageant judge Mario Lavandeira, saying "I believe that a marriage should be between a man and a woman. No offense to anybody out there . . . ."

On May 5, counsel for NOM responded, rejecting MUO's demand that it cease and desist from broadcasting and posting the ad and arguing that its incorporation of the 2009 pageant footage for purposes of politcal commentary is a fair use.

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Lavandeira v. National Organization for Marriage

Date: 

04/30/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

National Organization for Marriage

Type of Party: 

Individual

Type of Party: 

Organization

Legal Counsel: 

Barry A. Bostrom - Bopp, Coleson & Bostrom

Publication Medium: 

Broadcast
Website

Relevant Documents: 

Status: 

Pending

Description: 

Mario Lavandeira, a.k.a. Perez Hilton, sent a DMCA takedown notice to YouTube, claiming that a clip of an advocacy ad entitled "No Offense" from the National Organization for Marriage ("NOM") violated his copyright. In response to Lavandeira's notice, YouTube removed the video.

According to NOM, the ad "highlights the efforts of same-sex marriage activists to silence and discredit pro-marriage advocates, calling them 'liars,' 'bigots,' and worse." The ad, which appears in 30-second and 60-second versions, uses approximately three seconds of footage from Mr. Lavandeira's video blog, in which he calls Miss California Carrie Prejean a “dumb bitch.”   

Mr. Lavandeira also sent a cease-and-desist letter to NOM, demanding that it stop broadcasting the ad on television. NOM's lawyers shot back a response letter refusing his demand on fair use grounds:

No permission was required and no permission was sought from Mr. Lavandeira for use of the approximately three second clip of the video he posted on the Internet of his unjustified and unprofessional diatribe against and personal attack on Carrie Prejean, Miss California, for her response to his question at the Miss USA Competition, April 19, 2009. NOM's use of this three second video clip is protected by 17 U.S.C. § 107 for the purpose of criticism, comment, news reporting, and education as it relates directly to NOM's exempt purpose. NOM's use is not a commercial use, but as an issue advocacy advertisement is protected by the First Amendment to the U.S. Constitution and the fair use doctrine of the Copyright Act.

According to one press account, NOM's lawyers also sent a counter-notification to YouTube, requesting that the video be reinstated. 

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Orix v. Predatorix

Date: 

04/24/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Super Future Equities, Inc.; Schumann Rafizadeh; Cyrus Rafizadeh; Houman Thomas Arjmandi; Keon Michael Arjmandi

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of Texas

Case Number: 

3-06-CV-0271-B

Verdict or Settlement Amount: 

$12,500,000.00

Legal Counsel: 

Timothy F. Gavin, Charles J. Blanchard, Richard A. Rohan - Carrington Coleman Sloman & Blumenthal; Jeffrey W. Glass - Law Office of Jeffrey W. Glass; Jon P. Bohn - Bohn & Aucloux; Julie A Zanutto - Law Office of Julie A. Zanutto

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Material Removed
Retraction Issued
Settled (total)
Verdict (plaintiff)

Description: 

In the course of an ongoing lawsuit, Orix Capital Markets, LLC filed a counterclaim against Super Future Equities, Inc., Schumann Rafizadeh, Cyrus Rafizadeh, Houman Thomas Arjmandi, and Keon Michael Arjmandi.  The counterclaim alleged that the defendants set up a website -- www.predatorix.com -- that published false and defamatory statements about Orix.  For example, Orix claimed that the website accused the company of committing tax fraud and being under federal investigation for violating racketeering laws.  Later, Orix filed an amended counterclaim to add a copyright infringement claim arising from Predatorix's re-posting of a page from the Orix website.

The defendants filed a motion for summary judgment, which, in March 2008, the court granted in part and denied in part.  The court dismissed Orix's claims for business disparagement, tortious interference, and copyright infringement (notably, the court found that Predatorix's use of the Orix page was fair use), but found that the defamation claim was sufficient to go to the jury.

In February 2009, after a two-week trial, the jury awarded Orix $2.5 million in compensatory damages and $10 million in punitive damages, split between the defendants, except Keon Michael Arjmandi, who was not found liable.  After the verdict, the parties settled the case on undisclosed terms.  After the settlement, the Rafizadehs published an apology on Predatorix, acknowledging that the postings were incorrect.

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CMLP Notes: 

Note that the counterclaim is the threat, not the overall lawsuit. {MCS}

Priority: 

2-Normal

Whatever Happened to Playing Fair?

A few recent intellectual property disputes have highlighted the fact that the decision to pursue legal action is both a legal and a moral choice.  While concepts such as "fair use" help to ensure protection of both intellectual property rights while promoting creative expression, they can't replace a simple concept we all learned in kindergarten:  "treat others the way you’d like them to treat you."

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CW 11 News v. Improv Everywhere

Date: 

04/01/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Improv Everywhere

Type of Party: 

Organization
Media Company

Type of Party: 

Organization

Publication Medium: 

Website

Status: 

Pending

Description: 

After receiving a copyright complaint from the Tribune Company, YouTube took down a video from comedic performance group Improv Everywhere that allegedly infringed copright in a CW 11 (WPIX-TV) news broadcast. The CW 11 broadcast discussed an Improv Everywhere prank and reproduced excerpts from one of Improv Everywhere's own videos.

The original Improv Everywhere video showed an April Fools Day prank in which the group crashed a staged funeral.  CW 11 broadcast a news story about the video under the assumption that the video was a prank on unsuspecting funeral-goers.  In reality, Improv's prank was on any viewer who believed the video to be real.  Improv Everywhere has a detailed post on the takedown.

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Source: BoingBoing

status checked 6/17/09; no new info - CMF

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2-Normal

AP Tells Google and Other News Aggregators to Pay Up or Face Lawsuits

The Associated Press has announced that it is willing to fight over the question of who owns the content its member newspapers produce, even if it means no longer playing nice with the giants of the Web like Google.

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Huffington Post: Web Pirate or Prophet?

I write a blog at my home newspaper, The Dallas Morning News, and when I get 10 or 20 comments on a post, I am feeling pretty good about myself. Arianna Huffington? Her site, Huffington Post, draws around a million comments a month.

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Peter Needed a Jew... Bourne Co Needed a Lesson in Fair Use

Congress derives its power to enact copyright laws from the copyright clause, U.S. Const. Art. I § 8, which reads:

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INA v. Lee

Date: 

01/12/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Kevin B. Lee

Type of Party: 

Organization

Type of Party: 

Individual

Publication Medium: 

Website

Status: 

Pending

Disposition: 

Material Removed
Material Reinstated

Description: 

Film commentator Kevin B. Lee posted some of his critical video essays on YouTube.  Lee's essays contain clips from the films he is reviewing. After receiving a DMCA takedown notice from the rightsholder to the film "And God Created Woman" (designated "INA" in one of Lee's posts about the takedown),  YouTube disabled access to the video and subsequently disabled his entire account (this was the third such takedown notice).  Lee filed a DMCA counter-notice with YouTube, claiming that his video essays are proteced by fair use.  YouTube temporarily reinstated Lee's account pending further action by the rightsholder.

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Threat Source: 

Google Blogs

CMLP Notes: 

Note: We should continue to monitor Kevin's blog (alsolikelife.com/shooting) to see what the ultimate resolution is.  At this time, his account has been temporarily reinstated while YouTube reviews the counterclaim.

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1-High

Progress Illinois' YouTube Channel Reinstated After Fox Declines to Sue

Late last week, YouTube reinstated Progress Illinois' YouTube channel after Fox Television declined to sue for copyright infringement within the 10 day window prescribed by the Digital Millennium Copyright Act (DMCA)

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