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

from the fair-use-anyone? dept

Thu, Feb 4th 2010 4:41am — Mike Masnick

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.

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Filed Under: dmca, joke, takedown
Companies: whdh, youtube

36 Comments

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GeneralEmergency (profile), 4 Feb 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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Ed Woychowsky, 4 Feb 2010 @ 5:08am

Phrase of the day...
Can you say Streisand effect, boys and girls?
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The Anti-Mike (profile), 4 Feb 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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- PaulT (profile), 4 Feb 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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  - Marcus Carab (profile), 4 Feb 2010 @ 9:29am
    
    Re: Re:
    Or, "I used copyrighted content, but did not violate copyright because..."
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- Michael, 4 Feb 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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  - The Anti-Mike (profile), 4 Feb 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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    - MCR, 4 Feb 2010 @ 6:09am
      
      Re: Re: Re:
      Isn't that known as a precedent?
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    - Anonymous Coward, 4 Feb 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.
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    - anymouse (profile), 4 Feb 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?
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- Richard (profile), 4 Feb 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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- Richard (profile), 4 Feb 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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- Anonymous Coward, 4 Feb 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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- Anonymous Coward, 4 Feb 2010 @ 7:36am
  
  Re:
  lol you are hilarious, keep up the good work!
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- The Groove Tiger (profile), 4 Feb 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."
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- btr1701 (profile), 4 Feb 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.
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- Anonymous Coward, 4 Feb 2010 @ 8:26am
  
  Re:
  It's a defense BECAUSE it's a right. It's really not that complicated.
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- CommonSense (profile), 4 Feb 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...
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tophing, 4 Feb 2010 @ 5:21am

But again, fair use is a defense, not a right -> wtf???
again?
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Anonymous Coward, 4 Feb 2010 @ 5:33am

Soup'ed
Good luck with that, it has already been featured on E!'s The Soup.
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- PEBCAK, 4 Feb 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?
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  - CommonSense (profile), 4 Feb 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 :-)
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Todd, 4 Feb 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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- senshikaze (profile), 4 Feb 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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AJ, 4 Feb 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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Tom Landry (profile), 4 Feb 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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- reboog711 (profile), 4 Feb 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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peter (profile), 4 Feb 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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Overcast (profile), 4 Feb 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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RD, 4 Feb 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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Anonymous Coward, 4 Feb 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.
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Fo-Pah, 4 Feb 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
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mike allen (profile), 4 Feb 2010 @ 9:38am

perhaps i could suggest
A new carear "stand up " comady perhaps.
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RD, 4 Feb 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.
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Anony1, 4 Feb 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.
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A Blow J..., 5 Feb 2010 @ 1:22am

Windy it's a A Blow J...
Windy it's a A Blow J...
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