Watchdog Group Calls Out 'Bogus Internet Censorship'

EFF's "Hall of Shame" spotlights violations of copyright and trademark law.

October 30, 2009, 10:29 AM

Nov. 2, 2009— -- If you've ever seen Comedy Central's "Daily Show," you've seen 21st century free speech in action.

A few seconds of an ad here, a few seconds of a newscast there, combined with Jon Stewart's comedic commentary -- and voila! A modern-day mash-up that samples digital bits and pieces to create something new.

But where does one person's creation end another person's begin?

Though copyright holders certainly have the right to protect what belongs to them, in some cases, the so-called fair use doctrine allows the limited use of copyrighted material.

To be sure, fair use legalese is complicated stuff. But digital rights advocates, like the Electronic Frontier Foundation, argue the importance of defending the use of copyrighted video, music and other media when it's used for criticism, commentary, teaching and other creative uses.

In fact, it's so important that they've now turned to a tried-and-true weapon – public shame – to hit back at companies that they say overstepped their bounds.

EFF's online " "Hall of Shame" spotlights high-profile examples of what it considers violations of copyright and trademark law.

"Free speech in the 21st century often depends on incorporating video clips and other content from various sources," EFF staff attorney Corynne McSherry said in a statement. "It's what 'The Daily Show with Jon Stewart' does every night. This is 'fair use' of copyrighted or trademarked material and protected under U.S. law. "

Sometimes companies are justified in asking Web sites to take down content that belongs to them. But online rights advocates argue that, increasingly, they are going too far, demanding the removal of Web videos or music even when they could have been protected by fair-use and free speech laws.

"The fact of the matter is takedowns are happening all over the place for all sorts of things," said Richard Esguerra, a spokesman for EFF. "The Hall of Shame is meant to highlight some of the most egregious – the situations where the copyright owner really should have known better or a copyright owner is being particularly bullying."

Whether or not the "Hall of Shame" discourages takedown abuse remains to be seen. But the Electronic Frontier Foundation says it will update the list regularly, and help people served with takedown notices learn if and how they might be able to dispute a removal request.

Here are a few of their "honorees":

First up: National Public Radio, for contesting last week the use of an excerpt of one of its reports in an ad produced by Stand for Marriage Maine.

The report, "Massachusetts Schools Weigh Gay Topics," originally aired in 2004, but was used in a recent ad meant to encourage Maine residents to veto a same-sex marriage law in an upcoming vote.

After a listener pointed out the ad, NPR sent takedown notices to YouTube, Stand for Marriage Maine and others. Though the advocacy group complied with part of NPR's request, the ad is still on the organization's site and on YouTube.

EFF maintains that the ad would be protected by fair-use standards as an example of free speech.

But NPR argued that because the ad relied so heavily on its content, and had the effect of undermining the journalistic value of the work, it did not meet fair-use standards.

"As a journalistic organization, NPR is a long-standing proponent of fair use. Situations arise constantly where others use NPR content in ways we might not like, but so long as those uses are within reasonable and accepted fair use standards, we do not raise objections," NPR spokeswoman Dana Davis Rehm said in a statement. "But fair use does not mean that anyone can grab news content and use it in any way for any purpose."

In September, when an ad featuring an impossibly-thin Ralph Lauren model drew criticism on a couple of blogs, Polo Ralph Lauren fought back with copyright-infringement notifications.

The ad showed the model, Filippa Hamilton, wearing the designer's latest ensemble, but with a photo-edited waist that looked smaller than her head.

In late September, the blog Boing Boing posted the ad, adding the caption: "Dude, her head's bigger than her pelvis."

In a letter, PRL USA Holdings, Inc. (Ralph Lauren) told Boing Boing that it did not have authorization to post the ad, and asked that it remove the image. Boing Boing refused.

"Instead of responding to their legal threat by suppressing our criticism of their marketing images, we're gonna mock them," Boing Boing editor Cory Doctorow wrote in a blog post. "So, to Ralph Lauren, GreenbergTraurig, and PRL Holdings, Inc: sue and be damned. Copyright law doesn't give you the right to threaten your critics for pointing out the problems with your offerings. You should know better."

In a statement, Ralph Lauren acknowledged that the image had been doctored.

"For over 42 years we have built a brand based on quality and integrity. After further investigation, we have learned that we are responsible for the poor imaging and retouching that resulted in a very distorted image of a woman's body. We have addressed the problem and going forward will take every precaution to ensure that the caliber of our artwork represents our brand appropriately," said the statement.

When a group of pranksters launched a parodied New York Times Web site in 2008, diamond giant De Beers didn't take too kindly to one of its mock advertisements.

The fake ad read, in part: "Your purchase of a diamond will enable us to donate a prosthetic for an African whose hand was lost in diamond conflicts. DeBeers: from her fingers to his."

De Beers sent a takedown notice to the group's domain name registrar, arguing that the content constituted trademark infringement.

De Beers declined to comment for this story but EFF defended the Web site, and the mock ad still lives online.

EFF came down particularly hard on Warner Music Group for initiating the removal of YouTube videos that contained its music, after revenue negotiations between Warner and YouTube broke down in January 2009.

Though much of the pulled content included full-length songs cut by Warner artists like Madonna and Neil Young, EFF's Esguerra said many homemade mash-ups and comedic artist tributes were "collateral damage."

Among the "victims" highlighted by EFF: A teenager singing "Winter Wonderland" for friends, and an a cappella tribute to film composer John Williams.

Warner declined to comment for this story but last month announced with YouTube that it had reached an agreement that would return Warner music to the video-sharing site.

In another example involving political speech, in 2008 NBC sent a takedown request to YouTube over a satirical Obama campaign video that used NBC News footage to "announce" that Senator John McCain had been elected president.

The ad, called "Bad News," featured NBC's Tom Brokaw and MSNBC's Keith Olbermann seeming to report that McCain had won.

NBC did not immediately respond to requests for comment but, at the time, argued that the content's use was a copyright infringement.

YouTube complied with the request and pulled the video but EFF argues it was legitimate political speech protected by law.

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