Radio Station Uses Copyright Claim To Try To Silence Bad Science Critic; Guess What Happens?

from the streisand-is-calling dept

A whole bunch of folks are sending this one in, so let's get it covered. Ben Goldacre writes the excellent BadScience blog where he exposes those promoting (you guessed it) "bad science." It's been a great resource in the past. Earlier this week, he took on a radio program in the UK, hosted by Jeni Barnett. Apparently, Barnett went on at length bringing up numerous highly questionable points siding with the rising tide of anti-immunization parents (who refuse to have their children immunized from things such as measles, mumps and rubella). Goldacre posted a 44-minute clip of the show to let his readers understand the extent of what Barnett had said, making sure that nothing he was talking about was taken out of context.

Of course, rather than respond to this, perhaps by at least trying to back up what Barnett had said, LBC just sent a takedown notice using the typical threatening legal talk, demanding that it be removed immediately, that the lawyers be informed -- and making it clear that they still might sue him anyway. So, what's been the response? Well, a ton of sites have picked up on the story, giving a lot more attention to both Barnett's "bad science" and LBC's unwillingness to be open to any criticism. Hello, Streisand Effect.

This is, quite clearly, another example of copyright being used, not to "protect" the creator's rights, but to prevent free speech and try (and fail, miserably) to quiet public dissent. We've seen this thing backfire so many times, it makes you wonder why big companies and their expensive lawyers somehow still think it works.


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  1.  
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    Hulser, Feb 6th, 2009 @ 10:29am

    Snippets

    Hmmm, not saying that I defend the actions of the radio station, but it seems to me that Goldacre could have avoided the trouble if he'd just posted small snippets of the original broadcast which were most relevent to his points.

    I personally think this would have been much more in line with the intent of fair use with respect to critique. I mean, if I'm writing a review of a movie, I couldn't get away with posting the entire video of the movie.

     

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    Stuart, Feb 6th, 2009 @ 10:34am

    Re: Snippets

     

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  3.  
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    Steve (profile), Feb 6th, 2009 @ 10:36am

    I was about to send you the link...

    Man, the intertubes work fast.

     

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  4.  
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    Anonymous Coward, Feb 6th, 2009 @ 10:36am

    Re: Snippets

    Unfortunately, I think you're right, and that bothers me. He posted the full 44-minute clip to be clear that he wasn't taking her words out of context, which I think it particularly important in his critique of what she said. I don't think the same can ever really be said about a movie critic's review, but the law doesn't seem to notice the difference.

     

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  5.  
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    Matt Bennett, Feb 6th, 2009 @ 11:05am

    Ok, once again (cuz I said it before in regards to Foxnews) I think the radio station might have the more traditional worry of protecting their IP (and you can scoff at that concern as you will) than any actual interest in "stifling debate".

     

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  6.  
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    Mike (profile), Feb 6th, 2009 @ 11:08am

    Re:

    Ok, once again (cuz I said it before in regards to Foxnews) I think the radio station might have the more traditional worry of protecting their IP (and you can scoff at that concern as you will) than any actual interest in "stifling debate".

    What, exactly, are they "protecting"?

     

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  7.  
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    Anonymous Coward, Feb 6th, 2009 @ 11:14am

    Re: Re: Snippets

    The LBC charges two pounds per month for the ability to download podcasts of her show. By posting the entire show he is circumventing the LBC's intended means of delivery

    He should have broken it up into something that can be seen more as fair use. If he cut it into 5min blocks that would maybe take some of the bite out of LBC's claim.

    http://www.lbc.co.uk/jeni-barnett-podcast-3430

     

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  8.  
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    LostSailor, Feb 6th, 2009 @ 11:29am

    How is this "silencing" criticism?

    Let's not go overboard here. No one has silenced Mr. Goldacre, he's still free to write and speak about this issue, and his blog hasn't disappeared into the ether.

    Was the audio available on the radio station web site so he could link to it? If the clip was essentially the entire segment of the show where he appeared, it's not likely fair use. He should have posted smaller bits.

    And can this rather silly trope of the "Streisand effect" please be retired. It's a pretty dumb argument that someone should not defend their rights because it might "bring more attention" to a criticism or result in what some few might consider "bad" publicity. It's particularly egregious in this case since the radio station appears to be defending its rights rather than trying to advance the pet cause of one of its hosts.

     

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    You never know, Feb 6th, 2009 @ 11:36am

    It would not have mattered it is was the full 44 minutes or just a reference, once it is made public (not a paid ad or private paid subscription) it should be public domain! The issue is the radio station blew an opportunity to debate the issue and perhaps prove their point. They opted for legal action in attempt to stifle and silence any and all opposition, and perhaps make a little money along the way. Not only have they proven themselves a bully, they have damaged their creditability in any future articles. No maker how you look at it, LBC has proven beyond a shadow of drought, They are Incompetent, Stupid, and just simply, Cowardly!

     

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  10.  
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    Mike (profile), Feb 6th, 2009 @ 11:45am

    Re: Re: Re: Snippets

    The LBC charges two pounds per month for the ability to download podcasts of her show. By posting the entire show he is circumventing the LBC's intended means of delivery

    He did not post the entire show. He posted less than 1/4 of the show.

     

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  11.  
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    John Robertson, Feb 6th, 2009 @ 11:47am

    LostSailor.

    If it were just about protecting their rights then the sensible thing for LBC to do would have been to give Ben Goldacre permission to use the excerpt as long as he added a copyright note - 'used with permission'.

    Doing it this way LOOKS as though they are trying to stifle debate.

     

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  12.  
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    Mike (profile), Feb 6th, 2009 @ 11:48am

    Re: How is this "silencing" criticism?

    Let's not go overboard here. No one has silenced Mr. Goldacre, he's still free to write and speak about this issue, and his blog hasn't disappeared into the ether.

    He was using the audio for commentary purposes. Forcing him to remove the audio and threatening him with a lawsuit creates chilling effects. Why would he bother commenting on future episodes when he might get threatened.

    Including the segment is reasonable fair use because he was commenting on the entire segment -- and he was making it clear that he did not take her quotes out of context.

    And can this rather silly trope of the "Streisand effect" please be retired. It's a pretty dumb argument that someone should not defend their rights because it might "bring more attention" to a criticism or result in what some few might consider "bad" publicity.

    Really? So you think people shouldn't speak up and explain why doing a dumb thing might bring you negative publicity?

    Yikes.

    The fact that they're "protecting their rights" is meaningless. The only reason to protect your rights is if it makes business sense -- and we're showing why it clearly does not make business sense by highlighting how it often backfires.

     

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  13.  
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    DS78, Feb 6th, 2009 @ 11:50am

    BadScience website

    Page Load error. Server taking too long too respond...

    Streisand Effect indeed!

     

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  14.  
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    LostSailor, Feb 6th, 2009 @ 11:54am

    Re:

    Should they have asked him to pay a fee? Should they grant him permission if he doesn't want to pay a fee?

    Why should they grant him permission--permission he never asked for--after the fact? That's not protecting your rights, that's largely abandoning them.

    LBC is not "stifling" him in any way; they're not limiting his speech at all. Indeed, they gave him a platform to debate.

     

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    LostSailor, Feb 6th, 2009 @ 11:57am

    Re: Re: Re: Re: Snippets

    I can't get to the BadScience site to look for myself.

    Did he post his entire appearance on the show? If so, relevant snippets would have been more appropriate, with care take so that any claims he was taking out of context could be avoided.

     

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    LostSailor, Feb 6th, 2009 @ 11:58am

    Re: Re:

    Uh...their right to distribute and perhaps charge for their content?

     

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  17.  
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    Anonymous Coward, Feb 6th, 2009 @ 12:11pm

    Re: Re: Snippets

    I think the proper way around it, to highlight fair use, while still posting all of it to prove that it was not taken out of context would be to post both. Both the 44 minute clip and smaller relevent clips. Then when posting here are examples and then saying "and to show this is not taken out of context here is the entire segment."

    Just my thought. That would make it clear that his goal is to provide context/full disclosure and critique while also allowing him to target specific points.

     

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  18.  
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    LostSailor, Feb 6th, 2009 @ 12:11pm

    Re: Re: How is this "silencing" criticism?

    He was using the audio for commentary purposes. Forcing him to remove the audio and threatening him with a lawsuit creates chilling effects. Why would he bother commenting on future episodes when he might get threatened.

    Just using something for "commentary" purposes is only one part of a fair use claim, and it seems he used rather more than was needed for his commentary.

    The only thing he's "chilled" from doing is copying and posting content that he may not have the rights to. He's not "chilled" in any way from commenting on or criticizing that content. They did not threaten him in any way whatsoever for his commentary or criticism, but for a specific act of copying copyrighted content.

    Including the segment is reasonable fair use because he was commenting on the entire segment -- and he was making it clear that he did not take her quotes out of context.

    It might seem reasonable fair use to you, but defending that by saying "he was commenting on the whole segment" is too broad under nearly any interpretation of fair use.

    By that argument, I could say I'm commenting and criticizing the entirety of the Brittany Spears oeuvre and therefore it is fair use to put every one of her recorded songs on my site for download. It would be "fair use" to stream an entire movie because I'm writing a review. Sorry, it doesn't work that way.


    Really? So you think people shouldn't speak up and explain why doing a dumb thing might bring you negative publicity?

    Yikes, indeed. Talk about chilling effects. You thinks its a "dumb" thing for someone to protect their rights or defend themselves because you think it reflects badly on them. Some people may consider the rights or the principle important things to defend, even if you don't.

    The fact that they're "protecting their rights" is meaningless. The only reason to protect your rights is if it makes business sense -- and we're showing why it clearly does not make business sense by highlighting how it often backfires.

    There are other reasons to protect one's rights, but even so, it often makes eminent business sense, especially in the long term, to protect ones rights. You often claim it backfires but that is often largely a matter of perception. Such actions might cause "bad publicity" in your view among smaller groups of people while having no effect on the public at large.

    In this particular case, how is it backfiring on LBC? Because it's mentioned in negative terms here? Frankly I doubt they'd care.

     

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  19.  
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    Chronno S. Trigger, Feb 6th, 2009 @ 12:13pm

    Re: How is this "silencing" criticism?

    "and his blog hasn't disappeared into the ether."

    Don't speak too quickly, badscience.com is out for the count.

    Seriously though, It was only a 44min clip of a 3hour long show. That can't possibly be considered a replacement for the actual show that one must pay to hear.

    The "Streisand effect" is not about someone defending their rights but someone pretending to defend their nonexistent rights to hide criticism and bringing more attention to the criticism. Not saying that this is what happened, it's just a definition of the Streisand Effect.

     

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  20.  
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    LostSailor, Feb 6th, 2009 @ 12:43pm

    Re: Re: How is this "silencing" criticism?

    Thanks for the clarification on the specific meaning of the "Streisand Effect."

    In the original context of trying to assert control over uses of content that one clearly has no rights to (such as mentioning a trademark in adverse terms) or in the actual "Streisand" case, trying to assert control over content that you have clearly and obviously have no right to control, I think it's fine to use.

    However, that is not the case here, and in other posts where it's been invoked. Clearly the radio station has a rights interest in their content being reproduced. Whether it's considered a replacement for the "whole show" is not really applicable in fair use cases, otherwise anyone could claim "fair use" if they left out a small portion. More important, was this (and I don't know that it is) the entire segment where Goldacre appeared?

    I'm generally in favor of expanding fair use, especially for non-competitive and non-commercial use, but there will never be a hard-and-fast definition of fair use for all instances, so these types of challenges would still persist.

    My main complaint on the trope is that it's frequently invoked here in the context of trying to assert actual rights or defend against potential libel or slander just because there might be a danger of "bad publicity." By that thought, if you are ever actually damaged, you should just do nothing and let the damage stand lest someone think poorly of you.

     

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  21.  
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    Anonymous Coward, Feb 6th, 2009 @ 1:20pm

    Re: Re: Re: Re: Snippets

    I forgot, how does one draw the line on what constitutes fair use?

    Is there a specific fraction of the running time that one can post? Or is fair use determined by some other standard?

     

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  22.  
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    Mike (profile), Feb 6th, 2009 @ 1:25pm

    Re: Re: Re: How is this "silencing" criticism?


    My main complaint on the trope is that it's frequently invoked here in the context of trying to assert actual rights or defend against potential libel or slander just because there might be a danger of "bad publicity." By that thought, if you are ever actually damaged, you should just do nothing and let the damage stand lest someone think poorly of you.


    Whoa. We've never said you should do *nothing*. We've said that if you think someone has said something you think is wrong, you should explain why it's wrong -- not force them to stop saying it.

    It's not "letting the damage stand." It's responding to it. The problem in these situations is that they don't respond to it. They want it gone.

     

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  23.  
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    LostSailor, Feb 6th, 2009 @ 1:28pm

    Re: Re: Re: Re: Re: Snippets

    This particular case is in the UK, where the law is slightly different. In the US, there is no single rule for determining fair use, but there are a set of guidelines, which include the amount of material used as well as the amount in relation to the complete work, and the use to which it is put (commercial, non-commercial, educational, criticism, reviews, etc.).

    Non-commercial criticism and educational purposes generally tend to get more leeway, competing commercial use gets less.

    Here's the U.S. Copyright Office's guidelines for fair use.

     

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  24.  
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    Hulser, Feb 6th, 2009 @ 1:37pm

    Re: Re: Re: How is this "silencing" criticism?

    My main complaint on the trope is that it's frequently invoked here in the context of trying to assert actual rights or defend against potential libel or slander just because there might be a danger of "bad publicity." By that thought, if you are ever actually damaged, you should just do nothing and let the damage stand lest someone think poorly of you.

    Well, this whole issue depends on how you gauge the "damage". If you are under the impression that a company is being overly-aggresive in its fight to retain copyright rights, you can see where the damage caused by bad publicity would outweigh the potential benefit of winning your case. In other words, if you really don't have to sue someone because their company name contains the same word as your company -- "Monster" anyone? -- then you're likely to fall into the Streisand effect.

    Having said this, I would have to agree with your overall point, that as your sensical justification for defending your copyright privilegles goes up, the applicability of the term "Streisand effect" goes down. That's my take on the term anyway.

     

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  25.  
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    LostSailor, Feb 6th, 2009 @ 1:41pm

    Re: Re: Re: Re: How is this "silencing" criticism?

    Whoa. We've never said you should do *nothing*. We've said that if you think someone has said something you think is wrong, you should explain why it's wrong -- not force them to stop saying it.

    Mike, no one--absolutely no one--has forced Goldacre to stop saying anything. In this case you seem to be assuming that the radio station has a specific stake in a particular side of an argument with no proof that this is so. The radio host may have a stake in a specific side of the argument, in which case more debate is the answer. But that's not what this is about. This is about a broadcast company protecting their rights to their content. It is most emphatically NOT about stopping Goldacre from speaking in any way, shape, or form.

    In other instances, you are indeed advocating doing nothing to protect rights or address damage...beyond talking about it. Where people are asserting bogus claims of damage, I'd agree with you (such as some of the trademark cases you've mentioned in the past). But where there are legitimate claims for infringement or illegal damage to reputation--whether you think them valid or not--it's entirely appropriate to seek legal remedy, even if there might be "bad" publicity in some quarters.

    But that is simply not the case in this instance.

    It's not "letting the damage stand." It's responding to it. The problem in these situations is that they don't respond to it. They want it gone.

    The broadcaster here is responding to it, and in what is likely an appropriate manner under UK law. They don't want the criticism gone, they want the infringement to gone. This has nothing to do with responding to an argument or silencing anyone.

    You claim that not being able to post someone else's content is somehow "chilling" a response to that content and is somehow "silencing" Goldacre but I've yet to see any evidence that Goldacre's commentary and criticism relating to that content has been squashed, removed, or stopped in any way.

    He could have probably been fine with snippets or transcripts of brief portions of the show and he would have been fine with paraphrasing the host or simply responding to the debate while linking to the audio. In any event, his speech hasn't been curtailed at all.

     

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  26.  
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    LostSailor, Feb 6th, 2009 @ 1:57pm

    Re: Re: Re: Re: How is this "silencing" criticism?

    Husler:

    I agree that the "Monster" trademark suits are an abuse of the law as there was never any "damage" to the trademark (and I agree with Mike's posts on trademark, since trademark is supposed to be narrowly construed to avoid consumer confusion--though the "moron in a hurry" standard is perhaps a bit too loose as morons in hurry are likely to be quite confused in general).

    But there is a fine line about what is "overly aggressive" defense of copyright, with copyright supporters tending to support more defense and copyright antagonists tending to see any defense as too aggressive, depending on the depth of their antipathy to copyright.

    In the particular instance under discussion, without knowing more detail, it seems to me a proper request to remove copyrighted material from a blog. I doubt the publicity fallout for the broadcaster here is going to affect them much.

     

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  27.  
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    Rose M. Welch, Feb 6th, 2009 @ 2:31pm

    Re: How is this "silencing" criticism?

    How is that dumb? The original Barbara Streisand move certainly was dumb. The original complaint was much less invasive than the media frenzy that followed. No one is saying that they can't or shouldn't be allowed to. We're saying it's not usually the smart move.

     

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  28.  
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    LostSailor, Feb 6th, 2009 @ 3:30pm

    Re: Re: How is this "silencing" criticism?

    Having seen the original post on BadScience, more comment is warranted:

    Mike wrote:

    He was using the audio for commentary purposes....Including the segment is reasonable fair use because he was commenting on the entire segment -- and he was making it clear that he did not take her quotes out of context.

    There was actually very little "commentary" about the clip, except to say that everything the host was saying was a "canard". That's a 44-minute "clip" with three short paragraphs of "commentary" totaling 232 words, including the title and headers. To claim he wasn't taking "quotes out of context" is, to be kind, a stretch, since he strung a couple of very short quotes together and made no attempt to provide any context at all.

    And to counter the claim that he's somehow being silenced, the post in response to the take-down notice, where Goldacre criticizes the host and the broadcast company liberally runs to 1,892 words (NOT including the title or any of the many links in the post). Clearly he's still speaking as freely as ever and at even greater length.

     

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  29.  
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    LSF, Feb 6th, 2009 @ 4:27pm

    The trouble is that Ben didn't substantially comment on the show at all. I wonder if he really paid attention to it. An analysis of the recording reveals that most of the comment Goldacre must have a problem with actually came from listeners, and not from Jeni herself. Yes, she has a opinion on the matter - which she made clear - but, despite her tendency to interrupt everyone, she did give both sides a forum to speak. But, one of the dangers of a phone-in program is that the content is dictated by the calls and emails you receive. If 80% of the calls/emails received talk about the apparent dangers of MMR then that is what the show will illustrate. It's a shame that the nurse who called began her call by accusing Barnett of being irresponsible - it's not normally the best way to start a persuasive conversation.

     

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  30.  
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    ekcol, Feb 7th, 2009 @ 4:51am

    Re: Re: Re: How is this "silencing" criticism?

    LostSailor wrote: To claim he wasn't taking "quotes out of context" is, to be kind, a stretch, since he strung a couple of very short quotes together and made no attempt to provide any context at all. Other than the 44 minute clip including every statement she made on the subject during her show? Yeah, I don't know how people could have figured out the context from that.

     

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  31.  
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    Gazzer, Feb 7th, 2009 @ 5:12am

    @LostSailor
    Talk about missing the point entirely. It doesn't matter whether Ben was in the right or wrong here (in the sense of what LBC is trying to achieve).

    The LBC issued the takedown notice in order that the recording was no longer available. We can debate all we want on the reason for their takedown notice, but it doesn't change the reality that the effect of the takedown notice was precisely the opposite. No-one is debating the rights or wrongs of the Streisand Effect any more than you can debate the rights and wrongs of a tropical storm. The Streisand Effect just happens, and ensures the content in this show will now be on Bittorent etc, and is now being listened to by a far broader audience than it ever will be. On top of which the debate has shifted. Ben Goldacre is a respected commentator on 'bad science' - Jeni is not.

    Of course, LBC is free to let Jeni and Ben have a one on one debate live on TV if there is doubt about anything. That is something I would love to hear: the odds would be about as even as Alien vs. ET.

     

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  32.  
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    Chris Davis, Feb 8th, 2009 @ 11:25pm

    Priorities, please

    All this argument over whether LBC had the legal right to complain about unfair use (they did) misses the point. One of their presenters spent 40 minutes pushing a Luddite agenda that has already killed children even though the report that sparked it has been comprehensively refuted.

    The incidence of measles in the UK has risen from a few tens of cases a decade ago to over a thousand last year. And it's climbing, because the nonsense that started it is being propagated by ignorant people like the silly woman who presented this piece.

    This is not a matter of legal nicety, but of lethally dangerous proven misinformation. If LBC feel they should be allowed to profit from such misery they deserve what they're getting.

     

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  33.  
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    LostSailor, Feb 9th, 2009 @ 7:22am

    Re:

    Talk about missing the point entirely. It doesn't matter whether Ben was in the right or wrong here (in the sense of what LBC is trying to achieve)....The LBC issued the takedown notice in order that the recording was no longer available.

    Yes, let's talk about missing the point. The recording is still available at the LBC web site (for a fee). The point is that no one is being silenced, and Ben Goldacre is free to argue whatever he wants

     

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  34.  
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    LostSailor, Feb 9th, 2009 @ 7:26am

    Re: Re: Re: Re: How is this "silencing" criticism?

    Other than the 44 minute clip

    Forty-four minutes is hardly a "clip" and whether he had the right to post it is the point. Seems he was trying to take the lazy way of commenting saying "here's a lot of audio, I can't be bothered to put these quotes in context, so you do it.".

     

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