Posted on 05/08/2009 8:03:22 AM PDT by Teófilo
Unknown parties using Copyright Law as a cover to deny NOM’s free speech rights.
Folks, as some of you may know I am a part-time, unpaid volunteer for the National Organization for Marriage (NOM), a 501(c)(4) nonprofit organization organized to respond to the growing need for an organized opposition to same-sex marriage in state legislatures, to serve as a national resource for marriage-related initiatives at the state and local level and to provide an organized, national presence needed to impact state and local politics in a coordinated and sustained fashion. NOM has been in the news a lot lately, as one of the architects of the passing of Proposition 8 in California, a constitutional amendment that extended recognition before the law exclusively to marriages between one man and one woman.
Recently, NOM produced an advertisement featuring Carrie Prejean, currently Miss California and first runner-up in the Miss America pageant, titled No Offense, in which she joined forces with NOM to defend the integrity of marriage as a union of one man and one woman. The stance subjected her to base, coarse, and unrelenting attacks. A gossip website is now publishing photos taken of her scantily clad – clearly a foolish, youthful indiscretion - in order to destroy her character and credibility. Miss Prejean now awaits the decision of Miss California pageant officials to strip her of her crown due to these photos which allegedly violate her pageant contract.
However, the enemies of traditional marriage are not stopping there. On April 30, 2009, YouTube temporarily removed NOM’s No Offense video after a complaint lodged by Mario Armando Lavandeira, alias “Perez Hilton,” on the grounds of “copyright infringement.” YouTube restored the video after a member of NOM’s legal team successfully argued that NOM’s No Offense video met the Fair Use criteria set forth in sections 107 through 118 of the Copyright Act (title 17, U. S. Code).
This is the clincher: my duties as an unpaid volunteer for NOM include assisting members of the NOM team in maintaining Facebook’s NOM Page. The same day YouTube pulled the No Offense video, I uploaded it to the Facebook’s NOM Page.
This morning I received the following notice from Facebook copyright enforcers:
We have removed or disabled access to the following content that you have posted on Facebook because we received a notice from a third party that the content infringes their copyright(s):
[Portions of the Miss Universe pageant included in the video titled "No Offense," as well as a shared link to the same video on YouTube]
We strongly encourage you to review the content you have posted to Facebook to make sure that you have not posted any other infringing content, as it is our policy to terminate the accounts of repeat infringers when appropriate.
If you believe that we have made a mistake in removing this content, then you can submit an appeal by filling out our automated form at http://www.facebook.com/copyright.php?dmca_counter_notice.
It is my contention – and I so notified Facebook through their appeal form – that the copyright infringement allegation against NOM's video is bogus and meant to silence free speech. Specifically, I contend that the material NOM used in its video is in strict accordance with sections 107 through 118 of the Copyright Act (title 17, U. S. Code), detailing the aforementioned "Fair Use" exceptions as follows:
§ 107. Limitations on exclusive rights: Fair use40
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
I also contend that parties unknown are counting on the unfamiliarity with Copyright Law that Facebook’s guardians may hold in order to deny NOM its rights of freedom of expression.
If we leave the allegation unchallenged and let stand Facebook’s original determination, the consequences will lead to a chilling effect on everyone’s rights to free speech, criticism, and commentary of published material.
NOM’s video meets the letter and the spirit of the CopyrightLlaw. I urge Facebook to reinstate NOM’s suspended contents just as YouTube has done. If you are a member of Facebook’s community and support our stance on free speech and fair use of copyrighted materials, please ask the powers-that-be at Facebook to respect NOM’s rights and to restore the suspended contents.
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Don’t get me wrong, I’m on FreeRepublic for a reason, but free speech rights protect us from Congress restricting our right...not Facebook. Facebook can do whatever they want.
True; however in this case they were strongarmed using government power (via the odious "Digital Millenium Copyright Act").
True to an extent. However, a third party cannot invoke the law to compel Facebook to act in a certain way but stop me from questioning Facebook's actions under the same law! It's called equity.
If Facebook wants to police certain kinds of speech they should detail that stand in their user policy. They don't, so Facebook automatically has accepted its responsibility to arbitrate and respond to arguments on allegations of copyright infringement. In fact, they have provided the necessary mechanisms for appeal which I've availed myself of.
-Theo
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