by Goldy, 10/31/2009, 10:15 AM

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.

27 Responses to “Why does Kate Riley hate free speech?”

1. BobO spews:

If you want to be a stickler for words and facts, apply that to your own writing: Dow in fact violated the TVW copyright, which you yourself said in an earlier post “expressly prohibit[s] both modification of their material and its use for commercial or political purposes.” Period. You, and apparently Dow, now claim it was fair use; fine, but that’s a whole different animal. Riley’s statement was correct, and you should correct your error.

2. Leatherman spews:

Horses Ennui – you are so boring when rocked back on your heals, dissembling, in the role of third string flack.

Let’s just call you what you are: unimportant, trivial, insignificant, petty, trifling, negligible, paltry, immaterial, measly, inconsiderable, nickel-and-dime.

Or words to that effect.

3. Goldy spews:

BobO @1,
TVW’s copyright is determined by federal statute, not by TVW.

Leatherman @2,
And yet, here you are reading me. Huh.

4. Gman spews:

fat chance any of my comments get posted. Censors!

5. Darryl spews:

Gman,
My recommendation is that you carefully read the Comment Policy. Many of your deleted comments would have stood in an open thread.

This thread is about Kate Riley, TVW, fair use, the Dow Constantine ad, etc. (and it isn’t about you). Your off-topic comments to this or any other non-open thread will not be freed from the moderation queue.

6. Michael spews:

For more on the Fair Use Doctrine.
http://en.wikipedia.org/wiki/Fair_use

My, very limited, understanding of this is that TV W’s copy write would apply to materials that fall outside of the fair use doctrine.

7. Yes Sir spews:

Gman – if you want to post off-topic, you need to change your moniker to “Roger Rabbit”. Then you can ramble on about anything for paragraph after mind-numbing paragraph, no matter what thread you are posting in!

8. headless spews:

Gman. Would it be fair to call your instructions to us ‘dicktums’?

Heh….

9. Im YLB - Im jobless and surf the internet all day while my wife works spews:

@7..does seem like a double standard here…but I am not surprised.

10. Roger Rabbit spews:

TVW is more ignored than revered (what’s their market share? >1%?) but Riley’s use of this adjective is revealing. She’s making an emotional, not legal or policy, appeal to Times readers.

In fact, she can’t make a legal or policy argument, because TVW doesn’t have a legal case against Constantine, and because keeping this Hutchison clip under wraps and away from King County voters is lousy policy.

Policy should encourage, not discourage, public debate of candidate qualifications and positions; and should encourage, not suppress, dissemination of relevant information about candidates.

Riley can’t talk about the legal or policy ramifications of TVW’s position, because she and TVW are wrong on both counts. That means bluster is all TVW has, and irrational appeals to emotion are all that Riley has.

11. John Wilkinson spews:

There’s a very interesting analysis by a copyright attorney addressing a similar issue in Maine: Copyrights & Campaigns.

National Public Radio demanded that YouTube take down Stand for Marriage Maine’s TV ad that incorporated copyrighted NPR material in SFMM’s current effort to overturn the freedom of same-sex couples to marry. (Disclosure: I’m the strongest possible supporter of such couples being able to marry. Further disclosure: The blogger at Copyrights & Campaigns, Ben Sheffner, has worked for the McCain campaign. I’m a Dem and Obama supporter. So there are two reasons why I might otherwise hold Sheffner’s analysis in doubt.)

Yet Sheffner cites case law in support of SFMM’s Fair Use claim:

“I think SFMM has a very strong fair use claim here. The use is non-commercial (it is purely political); NPR’s work is factual, not fictional; the portion used is brief; and such a use will have no significant effect on the market for NPR’s work. And, importantly, the First Amendment is at its apogee in the context of a political campaign. See Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971) (First Amendment “has its fullest and most urgent application precisely to the conduct of campaigns for political office”).”

Equally significantly in light of TVW’s claim regarding its need to be seen as above the fray and to have continued access to events, Sheffner writes of NPR’s claim that campaign use of its material was in furtherance of its “valuable reputation as a trusted and unbiased source of news”:

“”Protecting [one's] reputation” is not a cognizable copyright interest, at least in the US, where we don’t recognize moral rights. Copyright is about providing financial incentives for creators, not for providing a legal club for anyone — even a purportedly “trusted and unbiased source[s] of news” — to shut down uses of their works that they don’t like. And the fact that NPR would refuse to allow any such use of its content in a political ad strengthens the case for fair use.”

Finally, Sheffner notes that one gay news site, Queerty, itself a strong opponent of SFMM’s political effort, nonetheless finds NPR’s effort to squelch political speech to be “ridiculous”.

12. Roger Rabbit spews:

@1 “Dow in fact violated the TVW copyright”

No, he did not violate TVW’s copyright, any more than you’re a lawyer. Better leave this to professional who know what they’re talking about, son, because you clearly don’t.

13. Roger Rabbit spews:

@3 “unimportant, trivial, insignificant, petty, trifling, negligible, paltry, immaterial, measly, inconsiderable, nickel-and-dime”

And you’re less important than Goldy by a factor of several thousand (i.e., he has thousands more readers than you do), so what does that make you? Hmmm?

14. Roger Rabbit spews:

@4 Quit bitching. My comments get deleted too. You’re not being treated any differently from anyone else.

15. Roger Rabbit spews:

@7 Quit bitching. If you don’t like the literary fare here, go to another blog.

16. Roger Rabbit spews:

@11 It’s always nice to have the best legal talent Republican money can buy doing our legal research for us! Be sure to send him a thank you note!

I suspect TVW is a national, not local, policy devised by public broadcast mavens. In all likelihood, those eggheads sat down together in a meeting room and came up with “good policy” (i.e., the result they wanted, not the result the law allows). Probably didn’t even consult their lawyers; or, if they did, did so only to instruct their lawyers to defend their policy.

This looks like a big, compelling, First Amendment issue of national scope; and, therefore, I think the ACLU should get involved in it.

And that’s where Goldy should go with his grievances against TVW. It’s time to sue the bastards. They are not a law unto themselves, and it’s time to put a stop to that.

17. Mr. Baker spews:

Constantine and Goldy’s obligation under the law, in this case, is citing the source, nothing more was implied about the originator (TVW). They, also, can not show harm (being a non profit, their bias can not be hurt if they are not entitled to bias).

18. daves spews:

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.

————

Well, Goldy – again – if you’re convinced you have an open and shut argument then you should have little trouble finding qualified legal counsel in Seattle who believes so as well AND who might be willing to take on the case either pro bono OR because of the likelihood of the other side having to pay legal fees. Given the principles involved I would think you’d be aggressively exploring your options if you aren’t already. So where do you find qualified counsel? Call the WSBA or KCBA for referrals, or go to Avvo (a Seattle company, actually) and search under Seattle and copyright:

http://www.avvo.com/search/lawyer_search?q=copyright&loc=seattle

From there you can get an overview of their practice focus and experience, and a link to their bio on their firm’s Web site. Many of these attorneys would probably be more than happy to meet with you (at their office) for an initial FREE consultation to assess what, if any, practical options you have.

19. SJ trollpatrol spews:

I say that TVW should lose their contract.

20. Chris Stefan spews:

I have to wonder if the wingnuts would be supporting TVW if TVW was going after Hutchison and Sound Politics instead for clips from a video that showed Constantine was misrepresenting himself?

21. Chris Stefan spews:

I also wonder if TVW would be acting like such idiots if instead of Horsesass it was one of the local TV stations or newspapers who had done the story using clips from a TVW video. Probably not as TV stations and newspapers tend to have lawyers specializing in First Amendment and Copyright issues on retainer. There is also the old adage about not picking fights with people who buy ink by the barrel.

22. Michael spews:

@21

I’m wondering if TVW’s could be seen as being more pro-establishment than anything.

23. ROTCODDAM spews:

Hiding behind the law is cowardly.

Real manly men shoot their neighbor’s dog and hide behind giant piles of money.

24. X'ad spews:

20. Chris Stefan spews:

I have to wonder if the wingnuts would be supporting TVW if TVW was going after Hutchison and Sound Politics instead for clips from a video that showed Constantine was misrepresenting himself?

You have to WONDER??????

Seek treatment before it’s too late.

25. Michael spews:

Why does Kate Riley hate free speech?

It might be that Kate doesn’t hate free speech, but that she hates the idea of “the little people” having the same rights and access that the establishment does.

Or maybe, she’s just stupid.

26. ROTCODDAM spews:

I’m with stupid.

27. Quincy spews:

If TVW can copyright its material, why can’t Hutchison copyright her own ill-advised statements and thereby force TVW itself strike them from the record of human discourse? She said it. They’re her words. TVW is attempting to establish its reputation on them. They have no right!