One of the things that irritates me most about Seattle Times editorial columnist Kate Riley is the way she writes so authoritatively about things she knows absolutely nothing about. For example…
But Constantine really stepped outside the lines of propriety, not for nastiness, but for violating the copyright of a revered institution, the nonprofit TVW, Washington’s version of CSPAN — and for refusing to cut it out. TVW has asked that it be taken down, and Constantine’s lawyers have refused. Constantine’s spokesman Sandeep Kaushik told seattlepi.com that the use is justified.
Riley is just flat out wrong about the basic legal facts. Once again, in utilizing clips from TVW, neither the Constantine campaign nor myself have violated TVW’s copyright. We may have used their material without their permission, and contrary to their stated policy, but we were totally, 100-percent within our legal rights to do so under the Fair Use doctrine of U.S. copyright law.
Indeed, in all their public statements and interviews, not even TVW has gone so far as to claim that the Constantine campaign has violated its copyright. In fact, TVW President & CEO Greg Lane himself appears to acknowledge Constantine’s legal right, even while abusing him for daring to exercise it, complaining to Publicola, “They’re hiding behind a fair use legal argument and ignoring the greater public interest.”
Hear that Kate? Lane is accusing Constantine of “hiding behind” copyright law, not violating it.
Which raises an interesting aside. The courts have previously determined that copyright holders must make a good faith effort to consider the Fair Use doctrine before issuing DMCA takedown notices. Thus if Lane acknowledges Constantine’s usage is Fair Use, then, under the DMCA TVW has legally perjured itself in issuing a takedown notice to YouTube. (The same would be true of the takedown notices TVW issued to YouTube and Vimeo regarding my videos). Huh.
Riley insists that Constantine should pull the ad and apologize, but if you ask me, it is Constantine who deserves the apology from TVW, after Lane’s organization knowingly issued a bad faith takedown notice in its efforts to enforce a policy it has no legal right to enforce.
And in fact personally, if I had the money to hire attorneys, that’s exactly the argument I’d be making in court Monday morning.