Copyright As Censorship: Filmmaker Gets Fair Use Clip Removed From Documentary Over Copyright Claim

Free Speech

from the can't-criticize-without-a-license? dept

Fri, Apr 1st 2011 10:56am — Mike Masnick

Justin Levine points us to yet another example of copyright law being used (successfully, unfortunately) for censorship. Elaine Kim, a UC Berkeley professor, made a documentary called Slaying the Dragon: Reloaded, which takes a critical look at how Asian women are portrayed in film and television. In doing so, she obviously used many clips from the videos that she was critiquing. And, while the big Hollywood studios (whose work is a large part of the focus) haven't complained, a group of six Asian American filmmakers have tried to claim that she infringed on their works by using the clips in her film without licensing.

Of course, this is a pretty clear cut case of fair use. I'd be amazed if anyone tried to make a reasonable case that using these clips wouldn't qualify as fair use. As John Diaz notes in the article linked above, she uses very short clips, and she does so for "social, political and cultural critique," which puts her on very solid fair use grounds. However, as he notes at the end of the article, Professor Kim still removed the clips of one of the more vocal filmmakers who demanded a license, saying that "we do not have the time or resources to fight against a filmmaker that personally attacked us and was being unreasonable."

This is unfortunate, and a clear case of using copyright as censorship. Even if the use was fair use, just the threat of a copyright claim against someone can and will (in this case, clearly) create serious chilling effects on speech. That's a serious concern, and it's a shame that some are choosing to mock the serious concerns of how copyright is used for censorship in this manner.

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Filed Under: censorship, copyright, documentary, elaine kim, fair use

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Markus Hopkins (profile), 1 Apr 2011 @ 11:05am

Anti SLAPP for Copyright
Mike, you mention the need for a federal Anti-SLAPP law pretty often. What would you think of legislation that took this type of situation into account as well?
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- Markus Hopkins (profile), 1 Apr 2011 @ 11:06am
  
  Re: Anti SLAPP for Copyright
  Oh, I suppose I can guess your answer (my first search must have been poorly worded...)
  
  http://www.techdirt.com/articles/20090910/1851016158.shtml
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Anonymous Coward, 1 Apr 2011 @ 11:07am

The problem here is that the film maker sees only two alternatives, use without permission or pay, without considering the other options. Other options would have including contacting the rights holders to ask for "use rights with credit only", rather than payment, which is possible and does happen. Had she done this and found some not willing, she could have changed some of the clips in her documentary and moved along with it.

I also think that this shows that fair use isn't a given in all cases. This is an example where individual clips may have passed the two prong test for fair use, but overall, a documentary that is nothing but these clips may be, as a whole, seen as something less than fair use.

It would also be a major blow for documentary film markers if this movie was taken to court and found to not be fair use, and I think that this filmmaker chose to remove the clip rather than spending the money to find out if they are right or not.

As other filmmakers have found, sometimes it would be better to ask first, rather than trying to bed forgiveness after the fact.
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- :Lobo Santo (profile), 1 Apr 2011 @ 11:10am
  
  Re:
  A well written bit of straw-man and misdirection.
  
  Very good! You get a B+
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- Anonymous Coward, 1 Apr 2011 @ 11:17am
  
  Re:
  "The problem here is that the film maker sees only two alternatives, use without permission or pay, without considering the other options. Other options would have including contacting the rights holders to ask for "use rights with credit only", rather than payment, which is possible and does happen. Had she done this and found some not willing, she could have changed some of the clips in her documentary and moved along with."
  
  Permission is not necessary for fair use.
  
  "I also think that this shows that fair use isn't a given in all cases. This is an example where individual clips may have passed the two prong test for fair use, but overall, a documentary that is nothing but these clips may be, as a whole, seen as something less than fair use."
  
  Fair use is specific to each situation (each piece of copyrighted content). You don't get to lump everything together so you can get around the clear fair use.
  
  "As other filmmakers have found, sometimes it would be better to ask first, rather than trying to bed forgiveness after the fact."
  
  There is no need for permission, and nothing to "bed" forgiveness for.
  
  Back to your bridge now, please.
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  - Anonymous Coward, 1 Apr 2011 @ 12:48pm
    
    Re: Re:
    Permission is not necessary for fair use.
    
    You are right, but you are wrong in another way: Fair use is not carved in stone, so the problem is that it may be fair use, it may not be. Rather than take a chance, making your movie only to discover that some people object, perhaps asking permission might get you past the hurdles... or at least make you look at other clips that you can easily get permission on. It's called avoiding a fight. Fair use is defensible, but may require you to put up a defense, which can cost you.
    
    Fair use is specific to each situation (each piece of copyrighted content). You don't get to lump everything together so you can get around the clear fair use.
    
    Again, not clear. Since fair use isn't cast in stone, since the rules are grey all over, this is potentially something that could play against the film maker. Your absolute concepts of fair use don't jive with the unclear rules of fair use.
    
    There is no need for permission, and nothing to "bed" forgiveness for.
    
    "beg". Sort of sums up your points, when you would rather pick on a typo than deal with the idea.
    
    Congrats. Your post has been voted insightful by like minded people who have never dealt with copyright before in their real lives.
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    - nasch (profile), 1 Apr 2011 @ 8:39pm
      
      Re: Re: Re:
      Rather than take a chance, making your movie only to discover that some people object, perhaps asking permission might get you past the hurdles... or at least make you look at other clips that you can easily get permission on.
      
      OTOH, if you ask permission and they say no, it might be harder to defend a fair use claim later if you decide to use it anyway. It shouldn't be, because fair use doesn't depend in any way on permission, but it could go down that way, or at least I could see someone thinking that it might, and that it's safer not to ask.
      [ link to this | view in chronology ]
    - Anonymous Coward, 1 Apr 2011 @ 9:50pm
      
      Re: Re: Re:
      "Congrats. Your post has been voted insightful by like minded people who have never dealt with copyright before in their real lives."
      
      meaning = I really agree with what you are saying, but i work like a whore for the my paycheck and can't express my true opinion because I have to deal with my boss in my real life.
      
      FIFY
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- Anonymous Coward, 1 Apr 2011 @ 11:19am
  
  Re:
  The problem here is that the film maker sees only two alternatives, use without permission or pay, without considering the other options.
  
  Yes. The fact that they don't understand that fair use exists is clearly part of the problem.
  
  Other options would have including contacting the rights holders to ask for "use rights with credit only", rather than payment, which is possible and does happen.
  
  Considering that Ms. Kim tried negotiating with the filmmakers in question shows that the filmmakers didn't want to consider other options. So as long as you're wishing, you might as well ask for a pony.
  
  I also think that this shows that fair use isn't a given
  
  How does it show that again? You said yourself that the filmmakers didn't want to play ball with Ms. Kim. The fact that she didn't have the resources to fight a protracted legal battle doesn't mean that her use wasn't fair. It means that some asshat is willing to abuse the legal system to prevent someone from exercising their rights.
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- Ken (profile), 2 Apr 2011 @ 4:34pm
  
  IP Maximilists the new authoritarians
  No they should not infact documentaries along with criticism MUST be protected and cannot be expected to get permission from the copyright holder because the copyright holder CANNOT have a veto in their own criticism or a documentary that may either put them in a bad light or if the nature of the documentary is against their own personal views.
  
  Copyright holders have no special right to restrict freedom of speech in any matter. CONGRESS SHALL MAKE NO LAW RESTRICTING FREEDOM OF SPEECH. Copyright holders are not some special class of people that are above Congress and the Constitution.
  
  There is no bill of rights for copyright holders. There is no special provision in the Constitution for them except to specifically mandate a time limit and its stated purpose is to promote free expression, not stifle it. Copyrights are very low on the rights food chain and are really in the category of revocable privilege than an inalienable rights.
  
  Newspapers are particularly low on even the copyright food chain. For one thing a news article is a perishable item. It looses its value the instant it is published. Many aspects of a news story cannot even be copyrighted since they are factual in nature. A fact that has weighed heavily in Right haven cases lately.
  
  It is absolutely apparent that IP Maximilists are freedom and Constitutional rights minimalists. They have a very authoritarian and absolutist world view. They are possibly the most dangerous threat to our freedoms that exist today. Either their view is defeated or we are all be subject to the copyright masters.
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  - Anonymous Coward, 4 Apr 2011 @ 3:27pm
    
    Re: IP Maximilists the new authoritarians
    And how's that Constituion working for us?
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  - Anonymous Coward, 4 Apr 2011 @ 3:27pm
    
    Re: IP Maximilists the new authoritarians
    And how's that Constitution working for us?
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Master Shake, 1 Apr 2011 @ 11:12am

Titles
Out of curiosity, what were the titles of the films and shows used in the documentary?
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- PRMan, 1 Apr 2011 @ 11:47am
  
  Re: Titles
  Please tell us the titles that were included and leave out those that requested to be left out.
  
  Thanks.
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Anonymous Coward, 1 Apr 2011 @ 11:13am

Mr. Hart most certainly does not "mock", a pejorative term unerringly used here whenever one happens to interpret existing law in a way that does not meet this site's "constitutional standards".

Reasonable minds can always differ on the substantive content of case law, but to say one is engaged in "mocking" when the opinion expressed fully details the data in support thereof is condescending.
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- Anonymous Coward, 1 Apr 2011 @ 11:22am
  
  Re:
  Your point?
  [ link to this | view in chronology ]
  - Anonymous Coward, 1 Apr 2011 @ 11:36am
    
    Re: Re:
    That this site is far too quick on the draw, lauding opinions with which it agrees and denigrating those with which it does not.
    [ link to this | view in chronology ]
    - Anonymous Coward, 1 Apr 2011 @ 11:51am
      
      Re: Re: Re:
      Welcome to the TD community, where holding people hostage via the legal system - or supporting those that do - is likely to get you bitch slapped in the discussion until you wake up and understand that the government has improperly extended and enforced copyright laws to the detriment of society and culture and those of us that wish to defend this position happen to be passionate about the cause for the greater good rather than the slaves to the money being extorted from us all. Myopic shill/trolls (aka shit-rolls) need not apply.
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      - Ron Rezendes (profile), 1 Apr 2011 @ 11:54am
        
        My post above...
        properly logged in now, grrr!
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      - Jay (profile), 1 Apr 2011 @ 11:55am
        
        Re: Re: Re: Re:
        I like the cut of your jib.
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        Ron Rezendes (profile), 1 Apr 2011 @ 12:01pm
        
        Re: Re: Re: Re: Re:
        Thanks! But now I really just want a letter grade from Lobo Santo...LOL!
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        Anonymous Coward, 1 Apr 2011 @ 12:18pm
        
        Re: Re: Re: Re: Re: Re:
        You're pro-piracy, so I imagine you will receive high marks.
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        Ron Rezendes (profile), 1 Apr 2011 @ 1:03pm
        
        Re: Re: Re: Re: Re: Re: Re:
        "You're pro-piracy, so I imagine you will receive high marks."
        
        Hmmm, that seems to be a huge leap of faithless based logic on your part.
        First of all, I legally own all of the software on my computers with valid licenses for the ones I don't "actually own".
        
        Second, I only download free music from iTunes, Spin Magazine and Amazon so I'm pretty sure none of that is infringing.
        
        Third, I don't use any type of torrent programs, nor do I visit torrent sites, nor do I otherwise download movies or other content.
        
        I disagree with copyright and patent laws from the perspective that all works should end up in the public domain probably within 20 years of being granted. I think content creators, led by Disney et al, have slowly eroded our culture by stealing ideas from the public domain, then hiding them behind copyright protections for lengths of time that are defined to exceed the lifetime of the creator. Patent laws are equally absurd. Especially when it comes to pharma, where people actually die or are driven into bankruptcy just to be able to afford medicine to survive. It is simply criminal to acquire a patent for a drug that cost $10 dose, then without lifting a single finger to improve the product, raise the price astronomically because others are simply not even allowed to offer an alternative.
        
        I do believe that patents and copyright have their place and should be obeyed but I completely disagree with the lengths of time these protections are in place and how they can be abused to stifle new works, derivatives thereof, actual innovation and the furthering or extension of previous products. I don't believe that using stacks of money to initiate legal battles with thousands of individuals that simply can't afford to defend themselves despite their innocence (Yes, they ARE ALL INNOCENT, until PROVEN otherwise in a court of law.)is a justifiable business method - it sure looks, smells and feels like extortion.
        
        Somewhere in there you will surely find that I am pro-piracy. I'm actually waiting for your reply so I know where this idea of yours comes from.
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        Ken (profile), 2 Apr 2011 @ 4:44pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        Disney has used their copyright for outright racist reasons. They have stolen and vaulted black culture and heritage. They own the copyright to the movie Song of the South that is a celebration of African-American folklore but for racist reasons they are using their copyright to erase it from American culture.
        
        The Constitution is being violated. The constitution mandates a copyright only for a limited time. Our current laws have made it virtually perpetual. Our current copyright laws our blatantly unConstitutional and its time for them to be challenged on this basis.
        
        The irony is that the over reaching of IP Maximilits are going to be the catalyst for copyright reform. Whenever a pendulum swings too far one way it eventually swings back even farther in the other direction. Copyright authoritarianism will result in less copyright protect and they will only have themselves to blame.
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        Ron Rezendes (profile), 6 Apr 2011 @ 10:19am
        
        AC being troll
        Five days worth of crickets chirping and no reply from the AC troll who insisted I'm pro-piracy.
        
        No, I'm not surprised.
        
        Nor do I believe a retraction or apology is forthcoming though obviously either would be entirely appropriate in the face of the false accusation above.
        
        You know who I am because I actually use my name on my posts and you know where I stand on these issues of copyright and patents because I've spelled it out quite clearly for you right here. Next time you want to claim otherwise, grow a pair and actually respond with some substance and perhaps a reference, citation or even a personal point of view to back up your position.
        
        Your lack of ethics, morals, and your willingness to defame others from behind the keyboard for your own comic relief and enjoyment reveal the emptiness of your very being. I doubt that even your mother is/was proud of you, but I'm sure you're content when you look in the mirror. Enjoy that view - you may well be the only one who can.
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        nasch (profile), 6 Apr 2011 @ 11:33am
        
        Re: AC being troll
        I doubt that even your mother is/was proud of you, but I'm sure you're content when you look in the mirror.
        
        The AC was certainly trolling you and deserved what you gave him, but you don't bolster your argument by resorting to ad hominem attacks like this. It's easy enough to shred their... I don't know what to call them because they're not really even arguments or positions... without getting personal.
        
        Again, not that he doesn't deserve it, but there's just no need to go down into the mud, for your sake not for his. Keep up the good fight!
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    - Anonymous Coward, 1 Apr 2011 @ 11:53am
      
      Re: Re: Re:
      Nice try, Terry Hart.
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      - Anonymous Coward, 1 Apr 2011 @ 11:54am
        
        Re: Re: Re: Re:
        That's not Terry Hart. That's MLS. I can tell by the writing style.
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        Mike Masnick (profile), 1 Apr 2011 @ 12:42pm
        
        Re: Re: Re: Re: Re:
        That's not Terry Hart. That's MLS. I can tell by the writing style.
        
        Hilarious. But when we point out that it's MLS from his writing style, we get accused of violating his privacy and spying on IP addresses.
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        coldbrew, 1 Apr 2011 @ 12:58pm
        
        Re: Re: Re: Re: Re: Re:
        I'm sorry. I hate focusing on people rather than ideas, but who is MLS?
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        vivaelamor (profile), 1 Apr 2011 @ 1:30pm
        
        Re: Re: Re: Re: Re: Re: Re:
        "I'm sorry. I hate focusing on people rather than ideas, but who is MLS?"
        
        I believe MLS refers to Michael L. Slonecker, an IP lawyer.
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        Anonymous Coward, 1 Apr 2011 @ 1:39pm
        
        Re: Re: Re: Re: Re: Re:
        Never complained before about these.
        
        Re "condescending":
        
        A condescending remark would involve words such as "liar", "pathetic", "dishonest", etc.
        
        Frankly, I prefer to use "You are mistaken."
        
        Now, turning the discussion back to Mr. Hart's article to which the word "mock" has been applied, if you want to make such a claim, then so be it. However, at the very least it would seem appropriate to identify those portions in the article that you believe support your use of the word and why.
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  - Anonymous Coward, 1 Apr 2011 @ 11:39am
    
    Re: Re:
    His point was that this was a pathetic attempt by Masnick to discredit the person who debunks him the most. It's a silly straw man since undoubtedly Terry Hart would not deny the possibility of copyright law being used for actual censorship. Hart's message was that most of the things Masnick labels as "censorship" are anything but. Masnick uses "censorship" as part of his pro-piracy sloganism. That much is clear.
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    - :Lobo Santo (profile), 1 Apr 2011 @ 11:42am
      
      Re: Re: Re:
      Too many buzzwords used in a manner inconsistent with their definition. Ad hominem far too transparent.
      
      Point is made late, and is muddled at best.
      
      You get a D-
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      - Anonymous Coward, 1 Apr 2011 @ 10:22pm
        
        Re: Re: Re: Re:
        D- is much too high a grade. There is no point to this post except to try and link Mike as pro-piracy. Doesn't make any sense as he is just trying to explain a new way of looking at content in the internet world we live in.
        
        Oh and I forgot....
        
        "Hart's message was that most of the things Masnick labels as "censorship" are anything but."
        
        citation needed. or at least something to back it up.
        
        I'd like to see if he's got anything to say.
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    - Jay (profile), 1 Apr 2011 @ 11:59am
      
      Re: Re: Re:
      Did you even read Terry Hart's words?
      
      Go to On Censorship:
      
      Government censorship is typically targeted at suppressing politically dissident speech, or obscene and other �inappropriate� speech. This is where copyright as censorship arguments falter. It�s illogical to say that enforcement of piracy is based on a disagreement about the content � a copyright owner agrees completely with the content. Cases of creative or transformative infringement do sometimes present issues where a copyright owner sues to stop a subsequent use she disagrees with, but as we�ll see, the doctrine of fair use provides a safeguard against censorship.
      
      From First Amendment Opportunism:
      
      But coloring the debate by alleging censorship � comparing the removal of a dancing baby video from a corporate video site to violent suppression of political dissidents � is a damaging use of hyperbole. It both minimizes the horrors of true censorship and paints opponents as evil rather than wrong.
      
      I would go on since I read the article before, but seriously, stop with the propaganda speak and at least understand how people come to their own conclusions.
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      - Anonymous Coward, 1 Apr 2011 @ 12:27pm
        
        Re: Re: Re: Re:
        You know what another word for creative infringement is?
        
        Art.
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- ChurchHatesTucker (profile), 1 Apr 2011 @ 11:36am
  
  Re:
  Reasonable minds can always differ on the substantive content of case law...
  
  As can unreasonable minds.
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- Mike Masnick (profile), 1 Apr 2011 @ 12:41pm
  
  Re:
  Mr. Hart most certainly does not "mock", a pejorative term unerringly used here whenever one happens to interpret existing law in a way that does not meet this site's "constitutional standards".
  
  Read that post again. He most certainly is mocking.
  
  Reasonable minds can always differ on the substantive content of case law, but to say one is engaged in "mocking" when the opinion expressed fully details the data in support thereof is condescending
  
  Coming from the person who is, without question, our most condescending commenter? That's rich...
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  - Anonymous Coward, 1 Apr 2011 @ 1:31pm
    
    Re: Re:
    I thought I was your most condescending poster. ;)
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Dave from Canada, 1 Apr 2011 @ 11:42am

Sensational headline
I don't see this as being a case of censorship in the way most people would think of censorship. Usually we think of censorship as being for an unjustifiable moral, political, or reputational reason. This is technically censorship because something wasn't able to be used because of a 3rd party, but this appears to be a typical disagreement that the courts were set up to solve. The indie film-maker, who may not have even recouped their investment on the film, thinks they should be paid for their clip which they spent money to create. The doc maker thinks no, it's clearly fair use.

Given what the article says, I think it probably is fair use, but if the 2 sides can't agree then the courts are there. I definitely don't agree with AC #8 when he/she says, "It means that some asshat is willing to abuse the legal system to prevent someone from exercising their rights." There is no abuse. This is what the legal system was set up to solve. If you want to find a solution, you need to look at making the legal system more affordable.
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- ChurchHatesTucker (profile), 1 Apr 2011 @ 11:49am
  
  Re: Sensational headline
  There is no abuse. This is what the legal system was set up to solve.
  
  And are spectacularly bad at that job. It becomes a matter of who can pay whom how much.
  
  That's why pirates abound. Don't litigate. Propagate.
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  - Anonymous Coward, 1 Apr 2011 @ 12:50pm
    
    Re: Re: Sensational headline
    Don't litigate. Propagate
    
    More like:
    
    Don't Respect. Steal.
    
    Carry on!
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    - Anonymous Coward, 1 Apr 2011 @ 1:07pm
      
      Re: Re: Re: Sensational headline
      You spelled copyright infringement wrong.
      [ link to this | view in chronology ]
    - Jay (profile), 1 Apr 2011 @ 1:09pm
      
      Re: Re: Re: Sensational headline
      [citation needed]
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    - Anonymous Coward, 1 Apr 2011 @ 1:11pm
      
      Re: Re: Re: Sensational headline
      Correction:
      
      Don't respect abusive laws that try to criminalize the human nature.
      
      Propagate ad infinitum.
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    - ChurchHatesTucker (profile), 1 Apr 2011 @ 1:17pm
      
      Re: Re: Re: Sensational headline
      Will do!
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    - RadialSkid (profile), 1 Apr 2011 @ 9:42pm
      
      Re: Re: Re: Sensational headline
      Lest you forget, "respect" is earned.
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- blaktron (profile), 1 Apr 2011 @ 12:54pm
  
  Re: Sensational headline
  Actually, Dave, in a sense it is an abuse because the first amendment CLEARLY states that "Congress will pass no law abridging the freedom of speech", therefore if a law that was not intended to stifle speech is used to do is, it is an 'abuse' in the classic sense.
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- vivaelamor (profile), 1 Apr 2011 @ 2:43pm
  
  Re: Sensational headline
  "Usually we think of censorship as being for an unjustifiable moral, political, or reputational reason."
  
  So, restricting your critics isn't an unjustifiably moral, political or reputational reason? Can you imagine a feminist having to ask a bunch of rap artists to use their works in a film criticising the portrayal of women in rap videos?
  [ link to this | view in chronology ]
Bruce Partington, 1 Apr 2011 @ 1:45pm

Here's the list of filmmakers, from their letter of complaint (http://www.sfgate.com/cgi-bin/blogs/opinionshop/detail?entry_id=85346). Funny how this basic information was left out from both this post and the article linked.

Lela Lee, Quentin Lee, Justin Lin, Karin Anna Cheung, Koji Steven Sakai and Stanley Yung
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Anonymous Coward, 2 Apr 2011 @ 12:53am

At the risk of getting this discussion back on topic, anyone interested in the subject should look at what happened with the award-winning documentary about Martin L King Jr., "Eyes on the Prize." Issues with the copyright of clips, etc. kept it from being seen for years.
washingtonpost.com/wp-dyn/articles/A14801-2005Jan16.html.
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Anonymous Coward, 2 Apr 2011 @ 12:54am

At the risk of getting this discussion back on topic, anyone interested in the subject should look at what happened with the award-winning documentary about Martin L King Jr., "Eyes on the Prize." Issues with the copyright of some clips, etc. kept it from being seen for years.
washingtonpost.com/wp-dyn/articles/A14801-2005Jan16.html.
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Anonymous Coward, 3 Apr 2011 @ 3:17pm

I love films about Asian women and have a pretty good collection. Asia Carrera, Tera Patrick, Kobe Tai, Mimi Miyagi...
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