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

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

Wed, Apr 29th 2009 5:55am — Mike Masnick

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.

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Filed Under: copyright, dmca, fair use, michael savage, takedown

24 Comments

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Skeptical Cynic (profile), 29 Apr 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.
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Anonymous Coward, 29 Apr 2009 @ 6:36am

DUMB ASS!!
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Anonymous Coward, 29 Apr 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.
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More to the story, 29 Apr 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.
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Anonymous Coward, 29 Apr 2009 @ 6:51am

Perhaps a one strike policy for sending bogus takedown notices. One strike any you loose your internet access forever.
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Anonymous Coward, 29 Apr 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.
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Shawn, 29 Apr 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
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Bogus, 29 Apr 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...
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Explain, 29 Apr 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.
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Anonymous Coward, 29 Apr 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.
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Shawn, 29 Apr 2009 @ 7:09am

Re: Re: relevant how?
Music artists are subject to Fair Use as well.
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Yes Really, 29 Apr 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.
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Anonymous Coward, 29 Apr 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.
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Explained, 29 Apr 2009 @ 8:34am

Re: Re: relevant how?
See section 107 of US copyright law
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a concerned Canadian, 29 Apr 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.
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Anonymous Coward, 29 Apr 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.
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Azrael, 29 Apr 2009 @ 8:51am

Re: Re:
Please don't feed the trolls.
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Anonymous Coward, 29 Apr 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!
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cvpunk, 29 Apr 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.
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Anonymous Coward, 29 Apr 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.
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Vic, 29 Apr 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...
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Baloney Joe, 29 Apr 2009 @ 11:28am

Re:
SAVE THE CHILDREN

whatever Savage...Go troll somewhere else you loser.
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Anonymous Coward, 29 Apr 2009 @ 2:05pm

FAIL..
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Anonymous12, 29 Apr 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.
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