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Anti-Gore ad yanked from YouTube

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By Michelle Malkin  •  March 26, 2008 10:56 AM

You know that I’ve had plenty of experience with YouTube shenanigans and abuse of the Digital Millennium Copyright Act (DMCA) by speech-squelchers. Now, my friends at the Competitive Enterprise Institute are experiencing it.

Sam Kazman, CEI’s general counsel, e-mails:

Michelle:

As you might know, two weeks ago we released a 60-second public service spot criticizing Al Gore’s proposed energy policies. We posted the ad on YouTube and began broadcasting it in several cities with a small ad buy totaling $30 thousand.

Most of the ad consisted of stock footage which we purchased and a bit of footage that we shot. But, based on our legal research concerning fair use, we took, without permission, 7 seconds of video from an 8-minute documentary created by a trade association about bringing electricity to a town in Haiti. The association itself had posted the full documentary on YouTube. The association also gave us a DVD of the documentary for free, from which we took the actual footage that we used.

The trade group is now claiming copyright infringement, and just got our ad pulled off YouTube with a takedown notice.

We think we satisfy every Fair Use criterion there is: educational purpose; miniscule amount of material used; no impact on the copyright owner’s market (since they themselves give away the DVDs and posted the film on YouTube); transformative use, etc…

…What’s really going on is that this group, which gets significant govt. $, has a politically correct image on global warming that they think we somehow threaten.

Coincidentally, Gore is now reportedly 1-2 weeks ago from launching his mega ad campaign to raise the profile of the global warming issue. Frankly, I’m not sure that’s physically possible.

Our press release on the dispute, with a new link to the disputed ad, is here.

Here’s the CEI video via blip.tv:

More:

CEI’s public service ad on the importance of affordable energy was unveiled on March 11. The ad documents the hypocrisy of jet-setting global warming alarmists who advise others to reduce their energy use and points out the vital need for more energy in the developing world. The ad, which aired in a dozen cities in the last two weeks, comes just before Al Gore’s Alliance for Climate Protection launches a $100 million ad campaign for his global warming proposals. Electric co-ops receive massive government subsidies, and the association’s move appears motivated by global warming politics.

“NRECA’s claim of copyright infringement is without merit,” said Competitive Enterprise Institute General Counsel Sam Kazman. “Our use of this miniscule amount of material – from a film which NRECA itself posted on YouTube and distributes freely –meets every criterion of Fair Use. It seems the association’s real goal is not to protect its copyright, but to protect its politically correct image on global warming.”

James V. DeLong, noted intellectual property scholar and Vice President of the Convergence Law Institute, stated of NRECA: “They’re trying to suppress important political speech, which lies at the core of Fair Use.”

I hope CEI files a counter-notice. Will keep you up to date.

Make sure to watch the vid. And make your kids watch it, too.

***

Update: Yes, indeed, CEI has filed a counter-notice. Here’s the letters exchange between CEI and the National Rural Electric Cooperative Association :

FIRST LETTER FROM NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION

From: Steiner, Tracey
Sent: Thu 3/13/2008 6:04 PM
To: Sam Kazman
Cc: Lavigne, Patrick
Subject: UNAUTHORIZED USE OF NRECA-OWNED VIDEO FOOTAGE

BY EMAIL, FACSIMILE & FIRST CLASS MAIL

Mr. Sam Kazman, General Counsel
Competitive Enterprise Institute
1001 Connecticut Ave, NW, Suite 1250
Washington, DC 20036

Dear Mr. Kazman:

The National Rural Electric Cooperative Association (NRECA) learned through your March 11, 2008 press conference and related announcements that Competitive Enterprise Institute (CEI) is intending to launch a major advertising campaign focusing on the impacts of global warming policies. Your broadcast advertisement, “LightBulbs,” contains 10 seconds of footage copied from an NRECA-owned video.

As you know from speaking with NRECA’s Director of Media Relations, Patrick Lavigne, this video footage features NRECA International Limited’s rural electrification efforts in Haiti. This 2006 video, for which NRECA claims ownership and copyright protection, has been posted on the www.nrecainternational.org web site, as well as on YouTube, among other places. We have circulated hundreds of copies of this video, and shared it with U.S. Congressional members, our donor organizations (USAid, etc.) and many within the international cooperative community.

Imagine our surprise and distress to find the most compelling footage from our video incorporated in a CEI advertisement. Not only did CEI did fail to obtain permission from NRECA to use the footage, but the video posting on our web site contains a copyright notice, so there can be no justification for CEI’s infringement of the video.

We demand that you immediately do the following:

* Remove NRECA’s footage from your advertisement;
* Notify and provide replacement advertisements to all media outlets to which you have provided the original LightBulbs
advertisement; and
* Publicly announce the availability of the replacement
advertisement through a press release, notice on your web site and any
other appropriate venue.

NRECA will be sending takedown notifications pursuant to the Digital Millennium Copyright Act, in order to have the infringing material removed from the Internet.

Please confirm in writing that you will comply with this letter by March 18, 2008. If you fail to comply with this demand, we will not hesitate to take all appropriate actions to enforce our copyright in the video and are in consultation now with our intellectual property litigation counsel.

Sincerely,
Tracy Steiner
NRECA Senior Corporate Counsel

CEI RESPONSE, emailed Fri. 3/14/08 9 am

Dear Ms. Steiner:
Your letter overlooks the plain fact that CEI’s use of your footage is valid under the fair use doctrine, as set forth in the U.S. Copyright Act, 17 U.S.C. section 107, in relevant court rulings, and in the Documentary Filmmakers’ Statement of Best Practices in Fair Use (2005). Our use satisfies every element of that doctrine:

1) it involves an incredibly small amount of footage: by my count, seven seconds of film from your 7:36 documentary. (You claim we use 10 seconds, but we needn’t quibble at this point) We used no more footage than was necessary to make our point;

2) our use is for a nonprofit, educational purpose;

3) because your film is a documentary rather than a work of fiction, there is more leeway for fair use of excerpts;

4) our use has no adverse impact on any commercial market that may exist for your documentary. In fact, there may well be no such market, since NRECA has deliberately posted the full documentary on YouTube and is distributing the DVD without charge. (That is how I obtained the DVD we used. Contrary to your letter, by the way, neither the DVD nor NRECA’s YouTube posting carries any copyright notice);

5) our use is transformative, since we are using footage about a rural streetlight to illustrate a different point than that of your film—specifically, the impact on developing countries of global warming-related restrictions on energy use.

Based on these elements, courts have upheld the fair use of significantly longer pieces of footage. See Hofheinz v. AMC Productions, Inc., 147 F. Supp. 2d 127 (E.D.N.Y., 2001); Hofheinz v. A & E Television Networks, 146 F. Supp. 2d 442 (S.D.N.Y.,2001); Monster Communications, Inc. v. Turner Broadcasting Sys. Inc., 935 F. Supp. 490 (S.D. N.Y. 1996). (As some of these cases indicate, CEI’s ad may be protected not only as fair use, but as de minimus infringement as well.)

Are you aware of any court ruling, statute or other legal basis that suggests that CEI’s action does not constitute fair use? If so, please bring it to our attention and we will reconsider our position. If you have no such basis, be aware that any attempt by you to restrict our fair use rights (such as the takedown notices that you threaten in your letter) may well be malicious, opening you up to monetary sanctions under section 512(f) of the Copyright Act.

As I told Mr. Lavigne, we are willing to credit NRECA for the footage, through notices on our website and in our YouTube posting. From my conversation with him and from your letter, however, I gather that, for certain reasons, NRECA wants no association with CEI’s film. But if you are concerned that our use of your footage somehow implies your cooperation or endorsement of our position, that could well be handled by appropriate notices as well.

I am out of town today, but would be glad to discuss this further with you on Monday.

Sam Kazman
General Counsel
Competitive Enterprise Institute

CEI RESPONSE TO SECOND LETTER (Mar. 20)

Dear Ms. Buckingham:

In regard to your letter of March 18, I’d like to respond to several of your points.

1. You state that CEI’s ad “is a purely commercial endeavor” whose “true purpose… is to raise funds for” CEI. This is an outlandish characterization. The ad was intended to highlight and stir debate over Al Gore’s energy-restricting proposals and it has done that, receiving over 16,000 hits on YouTube as well as significant media coverage. The ad contains no fundraising pitch. It directs viewers to our website, where they can find a huge amount of original material on global warming and other issues. (CEI, by the way, has been involved in global warming issues for over a decade.).

It’s true that our website screens have a small button soliciting support for CEI, and that CEI, like the vast majority of nonprofits, relies on its activities and reputation to gain financial support. You imply that, for this reason, all nonprofit activities are “purely commercial”. By this logic, nonprofit organizations would essentially be barred from claiming that they were engaged in nonprofit activities under the Fair Use doctrine.

2. You claim that the seven seconds used by CEI are the “heart” of NRECA’s video, and that without that footage the video “would have no meaning”. This is simply incorrect. NRECA’s eight-minute video is a highly informative account about bringing electricity to a Haitian village. It contains a number of interviews with those involved in this endeavor and many scenes about the village and the work. Absent the seven seconds that we used, the video would, for all practical purposes, be just as informative.

Consider NRECA’s other electrification video about southern Sudan. It does not have a similar scene; there is footage of people applauding some diplomats, but not of a crowd cheering as the lights are turned on. But you could hardly characterize the Sudan video as “having no meaning” because it lacks such a crowd scene, could you?

Just as importantly, the point is irrelevant. In the Harper & Row case that you cite, removing the “heart” of the work at issue was impermissible because it destroyed the commercial market for that work. But here, as you agree, there is no commercial market for the NRECA video. This brings me to my final point.

3. You argue that CEI’s use injures not NRECA’s ability to market its videos, but its “ability to compete … in the marketplace of ideas” by fostering the mistaken view that NRECA endorses CEI’s views.” As far as I can tell, this incredibly speculative injury has no connection to the concerns of the Fair Use doctrine. I would greatly appreciate any court rulings you might have to the contrary. You give the example of the “comments” section of our YouTube posting. I have gone through those comments, and I have not found a single reference to NRECA. In fact, in following discussions of our ad in both the press and on the internet, I haven’t found a single mention of NRECA.

If you are in fact concerned about your supporters thinking that CEI’s use of seven seconds of NRECA footage somehow implies NRECA’s endorsement of CEI, it seems that this could easily be remedied in several ways, such as a notice by CEI on its YouTube posting or a letter from NRECA to its supporters. I would be happy to discuss this with you in more detail.

Sincerely,
Sam Kazman

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