So we just had that post about how a TV station in Boston was abusing copyright law to take down
slightly embarrassing video of a weatherman it employs. In the post, I noted that while this was just over a potentially off-color joke, there were important free speech implications to it. Law professor Peter Friedman quickly points us to a more serious case
of a giant company stifling criticism through DMCA takedown. Apparently, food conglomerate, Archers Daniel Midland (famous, among other things, for getting caught in a massive blatant price-fixing scheme that made pretty much all of your food a lot more expensive than it needed to be), doesn't believe criticism of its CEO should be allowed. Friedman had posted a link to a video that took a bland, boring video of ADM's CEO droning on about "agriculture's role in the growing economy," and edited it to "make it appear as if she were speaking openly on behalf of an evil multinational bent on the gross and horrific exploitation of the world and especially of multinational food markets." Honestly, the original video looks just like the ridiculous corporate video that is made in the movie Michael Clayton
, about a company that is clearly supposed to be ADM.
Friedman points out how this is a clear abuse of copyright law and a violation of free speech:
This is outright copyright abuse. Criticism is fair use. When anyone asks whether in fact fair use is grounded in the Constitution's guarantee of free speech, all you need is to think of a situation like this -- one can appropriate copyrighted works to criticize and parody the copyright holder. And to use the copyright laws to silence that critique has nothing to do with protecting intellectual property and the rights of a creator to profit from his, her, or its creation: it's unconstitutional censorship!
The courts have tried to reconcile the question of how copyright law can possibly survive a First Amendment challenge (after all, the First Amendment says Congress shall make no law that interferes with freedom of speech... and yet that's exactly what copyright does) by saying that a robust fair use exception is the key to making it okay. But when fair use is trampled on repeatedly, it makes you wonder how anyone can still claim that copyright isn't a massive abuse of the First Amendment.