TV Station Issuing DMCA Takedowns To Try To Hide Weatherman Making A Bad Joke

from the fair-use-anyone? dept

It's been well documented how many people/organizations abuse the DMCA takedown process to try (and usually fail) to make content they don't like disappear, even if there's a legitimate reason for it being up. In the latest such example, a weatherman in Boston made a comment that many considered to be... a bit off-color for the local evening news. In discussing the snowfall in certain areas, he noted: "Picking up some snow are we? Yes we are. In Princeton we picked up 9 inches of snow and in Billerica we had 7." Then there's a brief pause before he steps forward and says: "The biggest amount I could find--almost as big as me--about 9 inches."
The station came up with an explanation for the statement, saying that he had a problem with his monitor and was displayed funny -- and thought that the viewing audience could see him that way too. Perhaps.

Still, though, the station, WHDH, has been aggressively issuing DMCA takedowns over the video (who knows how long the video above will stay up), even though it's almost certainly fair use, and courts have found that those sending takedowns need to take fair use into account. Justin Silverman, over at the Citizen Media Law Project, explains succinctly why this is almost certainly fair use:
In this case there's a fairly strong argument that the 27-second clip of Bouchard is fair. The amount of the original broadcast used is very small, the purpose of the clip is to spur public discussion, and there is arguably no effect on WHDH's news market. It's likely WHDH either didn't consider fair use before ordering the clip's takedown, or it simply didn't care.
And that's an issue. The DMCA allows copyright holders to shoot first and not care later. And that's a problem, because it can put a serious crimp on public discussion (which raises some serious First Amendment questions). Yes, in this case, it's just an off-color joke, but in many other cases it could be much more important speech.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    GeneralEmergency (profile), Feb 4th, 2010 @ 4:59am

    Wait...Just a sec...

    Is that girlish laughter I'm hearing coming from the Boston area?

    Thought so.

     

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  2.  
    identicon
    Ed Woychowsky, Feb 4th, 2010 @ 5:08am

    Phrase of the day...

    Can you say Streisand effect, boys and girls?

     

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

  3.  
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    The Anti-Mike (profile), Feb 4th, 2010 @ 5:13am

    The DMCA allows copyright holders to shoot first and not care later. And that's a problem, because it can put a serious crimp on public discussion

    Yet the copyright holder bears great expense to do this, as they have to issue individual DMCAs to each and every website that uses the video or hosts it. The burden on the rights holder is high as well, they cannot just wave a single piece of paper in the air and have things disappear.

    Is this a misuse of DMCA? Somewhat. But again, fair use is a defense, not a right, and before you get there, you have to admit to having violated copyright. Fair use is "I violated copyright but...". The distinction is very important, as fair use is a judgement call, not an absolute.

     

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  4.  
    identicon
    tophing, Feb 4th, 2010 @ 5:21am

    But again, fair use is a defense, not a right -> wtf???

    again?

     

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  5.  
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    PaulT (profile), Feb 4th, 2010 @ 5:24am

    Re:

    "Fair use is "I violated copyright but...""

    No, it's not. Fair use is an *exception* to copyright. It specifies things that are not subject to copyright law. It might be a judgement call at to whether a particular work is covered by fair use or not, but fair use rights are enshrined in the same laws that grant copyright in the first place.

    The correct quote would be "If fair use didn't exist then I would have broken copyright law". Very different from your twisted view.

     

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  6.  
    identicon
    Michael, Feb 4th, 2010 @ 5:33am

    Re:

    But again, the courts have said that they must take fair use into account BEFORE sending the takedown.

    This is a news organization, so they rely on fair use a lot in their productions. They should understand it's importance. They are going to have a hard time claiming ignorance on the issue or a belief that it is not fair use. It is pretty likely that a lawyer is going to be able to find a 27 second clip that WHDH has used in a similar way in the past.

    I like that you are at least somewhat agreeing that this is a misuse of the DMCA. Are you also willing to admit that rampant misuse like this would have a big negative impact on free speech and free press?

     

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  7.  
    identicon
    Anonymous Coward, Feb 4th, 2010 @ 5:33am

    Soup'ed

    Good luck with that, it has already been featured on E!'s The Soup.

     

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  8.  
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    The Anti-Mike (profile), Feb 4th, 2010 @ 5:38am

    Re: Re:

    But again, the courts have said that they must take fair use into account BEFORE sending the takedown.

    Actually, I think it was a single court, a single judge, in a single judgment, no?

     

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  9.  
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    Richard (profile), Feb 4th, 2010 @ 5:38am

    Re:

    Aunty Mike

    "fair use is a defense, not a right, "

    The very distinction between a right and a defence is bogus.

    Self defence is a right - and also a defence in a murder trial.

    Just like a murder trial you have to admit the you killed someone in order to claim self defence - but that is not the same thing as admitting murder.

    You are confusing a defence (which basically is a way of claiming that you did not commit the crime) with a mitigation plea (in which you admit the crime but ask for a more lenient punishment).

    In the copyright case to claim fair use you would need to admit that you made a copy - but you are claiming that you made a lawful copy and no infringement occurred.

     

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  10.  
    identicon
    Todd, Feb 4th, 2010 @ 5:40am

    The funny thing is, I don't think he meant anything dirty by it. Right before he made the comment, he had to duck down to get in the shot. I'm sure that's what he was referring to, and didn't even realize until later that it might be taken another way.

     

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  11.  
    identicon
    AJ, Feb 4th, 2010 @ 5:42am

    Funny

    It would almost be funny to see the fair use exemption removed for a short period of time. Then watch the crossfire of lawsuits and take down notices erupt between the big corporations. Imagine the news guy in a live broadcast with a big blue screen behind him because his station is afraid of being sued because they accidentally picked up a logo, or picture, etc.... East Texas would need another 500 Judges.....

     

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  12.  
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    Richard (profile), Feb 4th, 2010 @ 5:55am

    Re:

    "Yet the copyright holder bears great expense to do this, as they have to issue individual DMCAs to each and every website that uses the video or hosts it. The burden on the rights holder is high as well, they cannot just wave a single piece of paper in the air and have things disappear."

    This high burden is precisely the reason why it is stupid to insist on copyright.

    No legal measure or enforcement measure can change this situation.

    It's the old St Francis of Assisi - "accept the things I cannot change..."

     

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  13.  
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    Tom Landry (profile), Feb 4th, 2010 @ 5:59am

    are you fucking kidding me? The station is actually trying to come up with a legitimate reason for the joke?

    It HAS to be a bid to avoid an FCC fine because NO ONE is going buy that as an excuse.

     

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  14.  
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    peter (profile), Feb 4th, 2010 @ 6:01am

    fair use is a right!

    Another point on the suggestion that fair use, because it is raised procedurally as a defense to a claim of copyright infringement (you can't sue for a declaration that what you are doing is fair use unless someone is actively threatening to stop what you're doing because it allegedly infringes a copyright): fair use is grounded in the First Amendment guarantee of free speech, and thus has at least equal (and quite arguably superior) constitutional status as does copyright. And for a vivid demonstration of why this issue is so central to our political system, not how Archers Daniel Midland is abusing the takedown procedures: http://tiny.cc/jDfG7

     

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  15.  
    identicon
    MCR, Feb 4th, 2010 @ 6:09am

    Re: Re: Re:

    Isn't that known as a precedent?

     

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  16.  
    identicon
    Anonymous Coward, Feb 4th, 2010 @ 6:26am

    Re:

    "Yet the copyright holder bears great expense to do this"

    Awwww, lets all throw a pity party

    "as they have to issue individual DMCAs to each and every website"

    Yeah, running a business is just not what it used to be.

    "The burden on the rights holder is high as well, they cannot just wave a single piece of paper in the air and have things disappear."

    Hey Rocky, watch me pull a rabbit out of a hat

    "Is this a misuse of DMCA? Somewhat."

    It is either abuse or not, there is no somewhat.

    "fair use is a defense, not a right,"

    This has been debunked many times

     

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  17.  
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    Overcast (profile), Feb 4th, 2010 @ 6:53am

    Maybe he should ditch weather and check into a career in pR0n.

    Odd, I don't see it mentioned as 'news' on their site, lol.

    In all honesty, if a news station isn't willing to report news about themselves - they are FAIL.

    So if they want to post 'take downs' for copyright, perhaps they should post it themselves then?

    We should e-mail them and request it :)

     

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  18.  
    identicon
    RD, Feb 4th, 2010 @ 6:58am

    Yes, and?

    "Actually, I think it was a single court, a single judge, in a single judgment, no?"

    Yes, so what? You dont know about case law and precedents? Once a judge makes a ruling like this, it can be used in other, similar, cases in the future, until or unless it is struck down by someone like the Supreme Court.

     

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  19.  
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    reboog711 (profile), Feb 4th, 2010 @ 7:07am

    Re:

    He does a weird scruntch after the screen changes. I'd believe there was some technical glitch that confused him.

     

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  20.  
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    senshikaze (profile), Feb 4th, 2010 @ 7:22am

    Re:

    we all know that, but it is still funny.

    and just stupid that the station is taking this stance, though. if it was an honest mistake, then let people have their fun. they would have forgotten it by now anyway. and hell, you never know, you might get more viewers hoping that the weather guy is always this funny.

    (oh! we need to patent comedian/weatherman combo. we'll make a killing in east texas!)

     

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  21.  
    identicon
    Anonymous Coward, Feb 4th, 2010 @ 7:31am

    Yes, in this case, it's just an off-color joke, but in many other cases it could be much more important speech.


    For those who want to keep such jokes off the prime-time news, this is important speech.

     

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

  22.  
    identicon
    Anonymous Coward, Feb 4th, 2010 @ 7:36am

    Re:

    lol you are hilarious, keep up the good work!

     

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

  23.  
    identicon
    Anonymous Coward, Feb 4th, 2010 @ 7:55am

    Re: Re: Re:

    Does it even matter? If 15 judges in 15 courts in 15 judgments said the same thing, you'd just claim they were all wrong and continue ignoring the rulings.

     

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

  24.  
    icon
    The Groove Tiger (profile), Feb 4th, 2010 @ 8:04am

    Re:

    The frequent argument over whether fair use is a "right" or a "defense" is generated by confusion over the use of the term "affirmative defense." An affirmative defense is simply a term of art from litigation reflecting the timing in which the defense is raised. It does not distinguish between "rights" and "defenses," and so it does not characterize the substance of the defendant's actions as "not a right but a defense." The First Amendment, for instance, is generally raised as an affirmative defense in litigation, but is clearly a "right." Similarly, while fair use is characterized as a defense in terms of the litigation posture, Section 107 defines fair use as a "limitation" on copyright law and states clearly that "the fair use of a copyrighted work … is not an infringement of copyright."

    Oh yeah, you know what else is a defense and not a right? An alibi. But according to your logic, you first have to admit that you're guilty of the crime, before you can use the "defense" that you weren't even there at the time it occurred and that you have witnesses that can corroborate it.

    "Yes Your Honor, I did murder Mr. Doe. Ok, with that out of the way, I just want to show you footage of me being out of the country at the time the murder took place. Yeah, because it's a defense, not a right, donchaknow."

     

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

  25.  
    icon
    btr1701 (profile), Feb 4th, 2010 @ 8:10am

    Re: Fair Use

    > before you get there, you have to admit to
    > having violated copyright

    Absolutely wrong.

    Fair use, per the Copyright Statute, is an exemption from copyright and by definition not infringement.

     

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

  26.  
    identicon
    PEBCAK, Feb 4th, 2010 @ 8:11am

    Re: Soup'ed

    That's where I saw it. I think the episode is offered on demand as well as having been re-run several times. So what's the difference between TV showings and the internet showings? Why's the internet the bad guy?

     

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

  27.  
    identicon
    Anonymous Coward, Feb 4th, 2010 @ 8:26am

    Re:

    It's a defense BECAUSE it's a right. It's really not that complicated.

     

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

  28.  
    icon
    anymouse (profile), Feb 4th, 2010 @ 8:34am

    Re: Re: Re:

    Wait, weren't you the moron parroting what ONE judge had said in another thread just a couple days ago? I seem to recall that you found one lone idiot on the bench who called copyright infringement 'stealing' and you kept parroting the fact that A single judge called it 'stealing'.

    So let me get this straight, if you find ONE judge who says something in support of your outrageous beliefs, it supports your position and can be used to bludgeon anyone who doesn't agree with you, but when ONE judge sets precedent that doesn't support your position, it's just a single judge in a single court in a single judgment and we should all ignore it?

    Hypocrite much? Yeah, I thought so. Are you sure you aren't Wierd Harold reincarnated?

    This statement brought to you by the tinfoil hat brigade, and if we think The Anti-Mike is a wacko, you really have to wonder, don't you?

     

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

  29.  
    identicon
    Fo-Pah, Feb 4th, 2010 @ 8:36am

    Oops!

    My cock is...really large...
    Sorry me screen went funny for a second...the font went strangely bigger. Oh well, as I was saying my cock is named Jim, and he lives at a farm

     

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

  30.  
    icon
    CommonSense (profile), Feb 4th, 2010 @ 9:00am

    Re:

    "One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law."
    - http://www.copyright.gov/fls/fl102.html

    Copyright is a right afforded to artists, and the fair use doctrine is a set of exceptions to those rights. Does that clear things up for you?

    With that out of the way, it should also be clear now that everyone has a right to use whatever copyrighted materials they want as long as they use it fairly. If there's a question about it, it's up to both sides to try and prove their point...

     

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

  31.  
    icon
    CommonSense (profile), Feb 4th, 2010 @ 9:06am

    Re: Re: Soup'ed

    "Why's the internet the bad guy?"

    Because Cable companies can't control it the way they can TV... I thought that was clear by now :-)

     

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

  32.  
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    Marcus Carab (profile), Feb 4th, 2010 @ 9:29am

    Re: Re:

    Or, "I used copyrighted content, but did not violate copyright because..."

     

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

  33.  
    icon
    mike allen (profile), Feb 4th, 2010 @ 9:38am

    perhaps i could suggest

    A new carear "stand up " comady perhaps.

     

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

  34.  
    identicon
    RD, Feb 4th, 2010 @ 12:35pm

    OWNED

    Excellent points to all (except TAM of course). I think this subject, and scumbag shill trolls like TAM, are now effectively OWNED. You have just had fair use laid out to you, AND been caught out being 100% a hypocrite with this "one judge" thing (that YOU use when it supports your arguments, and DISMESS when it doesnt). I'd like to think the principle of this has sunk in, but I know better. Paid corporate shills dont get the luxury of independent thought or opinions that contradict their corporate masters.

     

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

  35.  
    identicon
    Anony1, Feb 4th, 2010 @ 1:03pm

    So, The-Anti Mike, do you have you know, any actual facts to bring to bear in this discussion, or should we just expect your usual bull $hit? The second? I thought so.

     

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

  36.  
    identicon
    A Blow J..., Feb 5th, 2010 @ 1:22am

    Windy it's a A Blow J...

    Windy it's a A Blow J...

     

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


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