Did Michael Savage Violate The DMCA By Demanding Takedown Of Content Already Declared Fair Use?

from the questions,-questions,-questions... dept

We've written a few times about radio show host Michael Savage and his misuse of copyright law. Last year, he sued a group that he had criticized on-air for using the clip from his show on their website to respond. It took just a few months for a court to toss out the lawsuit and explain the basics of fair use to Savage. However, soon after that, Savage and his syndicator, Online Talk Radio Network (OTRN), sent out new DMCA notices, including one to the documentary film company Brave New Films, for a video clip that used the same material that had been used in the original lawsuit in a commentary about Savage. In response, Brave New Films, with the help of Stanford's Fair Use Project sued Savage and OTRN.

Savage responded on a number of points, trying to get himself out of the lawsuit, which have now been rejected by the court, though some interesting questions are raised by Eric Goldman in analyzing the decision. First, Savage claimed that he's not liable for a false DMCA takedown because OTRN sent it, rather than Savage. Except... Savage owns the copyright and in filing the takedown, OTRN had to claim that it was representing the copyright holder's interests, so the court tossed out that argument. Then Savage claimed it wasn't really a DMCA takedown, so he shouldn't be subject to sanctions for bogus DMCA takedowns, but the court found it to be substantially similar, so that argument got tossed as well.

But what makes this case interesting is what Goldman discusses in the final paragraph. You may recall last year, that a court ruled that those who are sending DMCA takedown notices need to at least consider if the use is fair use before sending the DMCA takedown (it doesn't say that you can't send the takedown, but that you first have to consider whether it's fair use). However, as Goldman notes, this case takes the question a step further because of the earlier lawsuit, where the use of substantially similar content was already ruled by the court to be fair use. To send a takedown on the same content certainly seems pretty questionable.

Of course, I'd guess that Savage's response would be that Brave New Films' use wasn't exactly the same, and thus he (or OTRN) no longer believed the use to be fair, but that may be difficult given the similarities between BNF's use and the use in the original case. Either way, this may be an interesting case to watch to see if someone finally gets in trouble for sending a DMCA on obviously fair use content.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Skeptical Cynic (profile), Apr 29th, 2009 @ 6:33am

    Sanctions against Copyright holders sending bogus takedowns.

    I think that the sanctions should be made very stiff for those people or organizations that send out takedown notices that turn out to be fair use. If you make the costs very high for sending out bogus takedowns than they will look closer at what they are doing.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Apr 29th, 2009 @ 6:36am

    DUMB ASS!!

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Anonymous Coward, Apr 29th, 2009 @ 6:47am

    Seems like the communists are a lot better at using the law against the nation, than the good guys are. The clip in question was used completely out of context to make it seem Savage was saying the opposite of what was really said. I don't know why those that love this once great nation even bother anymore, 30+ years of outcome based education have left this nation ready for the pain and heartache that is headed our way. I just feel sorry for all the children that will have to die because of the shift to socialism.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    More to the story, Apr 29th, 2009 @ 6:51am

    Before people jump the gun, you can see why he or OTRN made the request. This is a totally different person/group wanting to use the clip.

    The second guy will be using in a documentary which I am sure he will make money off of. will he be giving Savage a cut off any profits made?

    Copyright holders and the DCMA in general are out of control but everything is not black and white.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Apr 29th, 2009 @ 6:51am

    Perhaps a one strike policy for sending bogus takedown notices. One strike any you loose your internet access forever.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Apr 29th, 2009 @ 6:53am

    Of course - everyone who thinks Savage is a D-bag is a communist who hates their country. Its mouth-breathers like him who stir up hate in our society and only a weak-minded individual wouldn't be able to see that.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Shawn, Apr 29th, 2009 @ 6:56am

    relevant how?

    Before people jump the gun, you can see why he or OTRN made the request. This is a totally different person/group wanting to use the clip.

    The second guy will be using in a documentary which I am sure he will make money off of. will he be giving Savage a cut off any profits made?

    Copyright holders and the DCMA in general are out of control but everything is not black and white.


    Whether or not there are profits involved should have zero relevance as far as whether the clip falls into the fair use catagory

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Bogus, Apr 29th, 2009 @ 6:58am

    Re:

    Not true. savage is extreme at times but has some legit claims and points. you have to weed out the show boating for the points he is making.

    He is nothing to some of the left wing nut-jobs that blame Bush for Katrina or caused the 9/11 attacks. Have you had the luxury to listen to Air America with the 8 other listeners they have? A lot worse than Savage.

    not to mention so of the crap that is played on MSNBC with Maddox or Olberman...

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Explain, Apr 29th, 2009 @ 7:02am

    Re: relevant how?

    whats the different in him protecting his material and a music artist protecting theirs? the original court decision was wrong.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Apr 29th, 2009 @ 7:08am

    Re: Re:

    funny how you have to go after 'left wing nut jobs' that blame Bush for Katrina and/or caused 9/11.

    Really?? You have to go THAT FAR to paint this guy in a better light?

    I don't even know who this Michael Savage is but I can tell from this post and other ones above you all are digging deep to defend him.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Shawn, Apr 29th, 2009 @ 7:09am

    Re: Re: relevant how?

    Music artists are subject to Fair Use as well.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Yes Really, Apr 29th, 2009 @ 7:12am

    Re: Re: Re:

    well yes after you say

    "Its mouth-breathers like him who stir up hate in our society and only a weak-minded individual wouldn't be able to see that"

    which proves that he is nowhere near what others say.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Apr 29th, 2009 @ 8:30am

    Re: Re: Re: Re:

    You do realize that Anonymous Coward is not the name of a single person? I am not the same person that said that.

    So because someone said "Its mouth-breathers like him who stir up hate in our society and only a weak-minded individual wouldn't be able to see that" you say "Well then I better start escalating this!" Instead of taking a level headed approach?

    Mouth breather and weak minded indivdual is still a far cry from a dude that thinks Bush had control of a flipping weather control device and decided an awesome idea would be to destroy an american city! Especially since bush really really hated people that were not americans the level of insanity here is pretty high all over the god damn place.

    You could say "well you 'indy' self righteous bigots that buy T-Shirts promoting an anti-capitilist revolutionary you bought at the GAP seem to like "

    Might be seen as something a bit more acceptable and palatable. So while you are perceived as being angry you are still showing yourself as an informed individual and give yourself some weight in your argument instead of looking like a fat ugly troll.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Explained, Apr 29th, 2009 @ 8:34am

    Re: Re: relevant how?

    See section 107 of US copyright law

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    a concerned Canadian, Apr 29th, 2009 @ 8:39am

    Re:

    you said:
    "just feel sorry for all the children that will have to die because of the shift to socialism"
    I live in Canada, and most would say that free healthcare for everyone is "socialist", but is it bad that we help everyone?, Is it bad that the poor can be brought to hospital to be helped?, are children going to die because our taxes fund the hospitals at which they are born and at which their lives are saved?, I think your apparently broad hatred of socialism is misguided, and I challenge you to prove how socialism, (In Canada we call it helping our fellow citizens in their times of need) will result in the death of children.

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Anonymous Coward, Apr 29th, 2009 @ 8:43am

    Re: Re: Re:

    Typical leftist response - "I know nothing" but sure as hell can offer a completely bullshit opinion. Oh wait - that's the way all leftists operate, isn't it? Never let facts get in the way.

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Azrael, Apr 29th, 2009 @ 8:51am

    Re: Re:

    Please don't feed the trolls.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Anonymous Coward, Apr 29th, 2009 @ 8:55am

    Re: Re: Re: Re: Re:

    What an argument? Are you guys really debating how crazy a talk show host is?

    He's as crazy as some other crazy people
    vs.
    He's not as crazy as some other crazy people

    Who will win? Factional government!

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    cvpunk, Apr 29th, 2009 @ 9:26am

    Re: Re: Re:

    hahaha... exactly, not to mention that he would actually have to know what communism and socialism are to explain that to you.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Anonymous Coward, Apr 29th, 2009 @ 9:54am

    Re: Re: Re: Re:

    Now here we are! This guy made a somewhat decent attack. Still not proving he is all that more informed than myself but he's got it half down.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Vic, Apr 29th, 2009 @ 10:18am

    Fair use?

    As I see it - absolutely same thing as Warner Bros, that sends those DMCA notices, fair use or not (see a few posts earlier!). Fair use just does not exist for them. The only difference - Warner is much richer and nobody wants to sue them...

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Baloney Joe, Apr 29th, 2009 @ 11:28am

    Re:

    SAVE THE CHILDREN

    whatever Savage...Go troll somewhere else you loser.

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Anonymous Coward, Apr 29th, 2009 @ 2:05pm

    FAIL..

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Anonymous12, Apr 29th, 2009 @ 4:38pm

    I can't believe people would be confused when you have users purposefully using the same name (anonymous coward-WHY MULTIPLE USERS WTH ??!. /SARCASM



    Also some people's sarcasm detectors are not only not working, they were never installed.

    Example: Savage is a D-bag is a communist who hates their country. Its mouth-breathers like him who stir up hate in our society and only a weak-minded individual wouldn't be able to see that..

    That's either sarcasm (and contradictory actually if you read it through) or trolling. Either way, you're a fool to respond to it. Cheers.

     

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This