Fair use and the attack of the copyright bullies

Tuesday, February 5, 2008, 5:18 AM
Thoughts by John

You'd think in a small town that the odds of running into a copyright bully would be low, right? Well, not if you have a flatbed scanner and the local newspaper has an overzealous publisher.

If you're not aware of me and where I existing on this hideous dirt ball careening through space, my sector is up in a very famous little town called Punxsutawney, PA. Known for one thing: a frickin groundhog. Guh.

I wrote a rather vicious -- and that is the term, vicious -- article on the local website I run, called More.PunxsyPage.com. I included a scan of an ad from the newspaper, because the ad itself raised a lot of questions about the judgment of the town fathers and their chronic addiction to jumping up and down saying, 'Hey, we matter! Look!'

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The issue in question was a scan of an ad from the January 31, 2008 issue of the Punxsutawney Spirit. It's a decent enough newspaper for a Yankee rag with a circulation of 5,500 and slowly bleeding away. The ad itself was a faux ticket to a closed event, private function held by the Food Network while they filmed their show Dinner Impossible, starring Robert Irvine who looks like Vladimir Putin and is in fact marketed as some sort of badass / celebrity chef / ninja / breakdancing pirate / super spy.

I asked the inevitable question: who the bloody hell runs an ad for a friggin private function held at the Country Club by the Groundhog Club? I mean, I couldn't think of a more excluding group if the Illuminati and the reptilians were having a meeting to discuss Planet X's role in the final destruction of life on earth. Geez.

And then the friggin publisher of the newspaper phoned me demanding a takedown and playing some serious 'I'm not a lawyer, but, you know, lawyers exist, law, law, lawbity law-law.'

Now, let's review the Fair Use provision of the United States Copyright Act, kids.

I quote, from ChillingEffects.org:

When a copyright holder sues a user of the work for infringment, the user may
argue in defense that the use was not infringement but 'fair use.' Under the
fair use doctrine, it is not an infringement to use the copyrighted works of
another in some circumstances, such as for commentary, criticism, news
reporting, or educational use. The defense generally depends on a case-by-case
judgment of the facts.

Fair use is codified at Section 107 of the Copyright Act, which gives a
non-exclusive set of four factors courts will consider in deciding whether a use
is fair or not. These factors are

the purpose and character of the use,

the nature of the copyrighted work,

the amount and substantiality of the portion used, and

the effect of the use on the potential market for or value of the
copyrighted work.

Well, let go through that in reverse.

4: It's a frickin ad.

3: It's a copy of a frickin ad.

2: It's a frickin ad.

1: I was discussing the ad as a point of criticism about the obnoxious nature of how my hometown of Punxsutawney is constantly whoring itself out on behalf of whatever media will pimp it.

By the way, that's the tone of the original article. You can see where some folks were pissed, no question. But, being angry about something doesn't give anyone the right to misrepresent copyright law and fair use principle.

Fair use is a critical part of American discourse. If we allow people to claim copyright protections from criticism simply by taking out an ad in the newspaper, then every single jerk in America with an ax to grind will just take out an ad and silence criticism.

Don't dare cower behind copyright law. Least of all if you're the goddamned newspaper.

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