“As for Savage’s lawsuit, the 1st Amendment will actually work against him in his claims against CAIR for copyright infringement.”
How so? They used excerpts from his show without his permission.
driftdriver, there is such a thing as “fair use” under copyright law. Basically, portions of a copyrighted work can be reproduced for things such as criticism, comment, news reporting, etc. The four factors which must be considered are:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. 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.
Fair use really goes hand in hand with the First Amendment. In fact, the fair use doctrine was originally a judicial creation, rooted largely in the 1st Amendment. It later was codified at 17 USC section 107. Its application is very fact dependent. However, in the context of political speech, it gives one the ability to, for example, quote portions of a copyrighted work in order to comment on it. Without fair use, for example, a politician could write a speech, give that speech at a public gathering, and then use the copyright laws in order to prevent anyone from reproducing portions of that speech for purpose of commentary, news reporting, etc.
Savage’s lawsuit is a bit strange...er, unique, in that it seems to be challenging CAIR’s reliance on the fair use doctrine because of how CAIR is using the excerpts (to raise money), the nature of CAIR itself, and the negative impact of CAIR’s use of the excerpts on Savage’s ability to make money.
It would take way too long for me to expound further on this right now, and I would probably mess something up or omit something important. But, courts tend to side with the accused infringer in these situations provided that there is at least an appearance that the materials is being used for commentary and that the amount of material reproduced is not too great.
One other thing that others have alluded to....reverse some of the facts in this case...imagine there is a left-wing radio program (there are still a few of those left, aren’t there?) in which the host routinely rants about American soldiers in Iraq being involved in rape, the killing of innocent children, torture of prisoners, etc. - the worst possible vile you can imagine.
Now, let’s also imagine that there are numerous well-known companies that run advertising during the radio show. One can only imagine that there would be several groups and organizations very upset and wanting to put a stop to it. Most people, including myself, would feel that one approach would be to try and convince advertisers to drop the show immediately, else face a call for a nationwide boycott. Of course in order to be effective, those efforts would likely necessitate the reproduction, either audio recordings and/or transcriptions of portions of the show. If the protesters have enough money, they might even pay for some radio and TV advertisements calling for boycotts, and those ads would really need to use some excerpted material. Paraphrasing is not very effective most of the time. BUT, without the fair use doctrine, the use of those excerpts without permission would be considered copyright infringement.