July 25, 2004  ·  Lessig

Roger Ailes on Outfoxed‘s use of clips (from an interview in Broadcasting & Cable, not available online):

Any news organization that doesn’t support our position on copyright is crazy. Next week, we could take a month’s worth of video from CNN International and do a documentary “Why does CNN hate America?” You wouldn’t even have to do the hatchet job Outfoxed was. You damn well could run it without editing. CNN International, Al-Jazeera and BBC are the same in how they report-mostly that America is wrong and bad. Everybody should stand up and say these people don’t have the right to take our product anymore. They don’t have a right to take a year’s worth of Dan Rather or Ted Koppel and edit it any way they want. It puts journalism at risk.

Notice the strategy: Rally the cartel to protect itself against the critics.

And the New York Post:

It’s a dangerous precedent.

Not just because it so badly twists the truth. Or violates copyright laws.

But also because it sets up every news outlet for the same low blow.

If The New York Times or CNN approve of this tack, then just wait until someone lifts an early draft of some Times piece or CNN’s out-takes.

No doubt, a double standard will kick in, and they’ll be up in arms.

But they’ll have been defamed nonetheless.

By now, Americans are used to these tricks of the Left � shady tactics for which the film’s sponsors, MoveOn.org and George Soros, are notorious.

But good people � good journalists � must stand up and deplore this trend. They should let Soros & Co. know that deception and outright theft transcend reasonable discourse.

  • Thomas

    But there will be a double standard, won’t there? I mean, you haven’t separated the underlying legal merits from your views Fox News. One might even think that the views of some–not you in particular–on the merits of the copyright claims in this case are driven by their hatred for Fox News. Changing one simple fact–who the copyright holder is–shouldn’t make a difference, but in these times, one wouldn’t be surprised to find some insist that it should.

  • http://www.fallinggrace.com Neil Wehneman

    Actually, Larry has already considered the merits of the copyright case, apart from FoxNews. Might I suggest this piece for Variety?

    Obviously, he mentions FoxNews in that piece. But you could cut those sentences, add in literary transitions, and you would have an effective exposition on the legalities alone.

    As for the New York Post (“New York’s Finest News Source!”) and their opinion, I feel they are intentionally confusing the issue. Material is copyrighted upon tangible expression, i.e. once filmed. Distribution, such as via broadcast, is not necessary. With the assignment of copyright comes the allowance of Fair Use.

    I believe quite strongly that what Outfoxed has done is Fair Use. So long as Outfoxed and company didn’t break real-space laws such as breaking and entering or “traditional” theft, I don’t see how their work should be legally actionable.

    I am open to correction on this point, as I am not (yet) a lawyer.

    – Neil Wehneman

    P.S. My apologies to The Onion, a truly fine distributer of satire, for sullying their tagline by associating it with the New York Post.

  • http://sethf.com/ Seth Finkelstein

    Somebody has to have done a basic public detailed fair-use analysis (more than the _Variety_ piece, I mean cases, cites, etc.). I’m not a lawyer, just have an interest in the topic, and even I could whip up something in a few hours.

    Basically, Fox News is not going to have its sales of clips damaged because _OutFoxed_ has a bunch of clips. That’s the case in a nutshell.

    I think the _Post_ is just mentioning the copyright issue in passing. To be, err, fair and balanced, their point is that any news organization has a lot of skeletons in the closet, and showing that reality could be done to anyone. Which is probably correct. But that doesn’t make _OutFoxed_’s conclusion wrong, it merely means it would be fascinating to see other journo-skeletons, someone should do it :-)

  • http://www.aaronsw.com/ Aaron Swartz

    Don’t let criticism make a mockery of our public discourse: Repeal the First Amendment today!

  • http://www.aaronsw.com/ Aaron Swartz

    This just in! Dangerous new technology called the ellipsis allows people to omit context and clarifying remarks, essentially changing what people say. If we allow Lessig to get away with his use of these three little dots, it leaves any writer open to having their words distorted. I’ve called Orrin Hatch and new copyright regulation banning this terrible practice (which, reportedly, some kids have used to make childish pornographic statements out of perfectly normal sentences) should be passed sometime this week.

  • Nate

    Frankly I don’t watch that much CNN or Fox. Tell me, is Roger Ailes telling the truth when he says that CNN reports “mostly that America is wrong and bad”? That is, is more than 50% of their reporting of that nature?

    I haven’t seen Outfoxed. Is the Post telling the truth when it says the film:

    * “badly twists the truth” – If so, which truths in particular can they point to?

    * consists of “early drafts” or “out-takes” of Fox news?

    * consists of “deception”? If so, what is the deception in particular?

    I am not aware that George Soros is notorious for using “shady tactics.” Is that slander?

    Or am I not supposed to take what Mr. Ailes and the Post say literally? Perhaps I should let the gestalt of their inflammatory rhetoric wash over me and act out of emotion instead of thought. After all, the Right would never, ever lie to me, would they?

  • http://www.philosophistry.com/ Philip Dhingra

    Always begin with the question: What’s best for the people?

    Old FOX news video clips, by being slapped together into a documentary, do not reduce profits to FOX News, and even if they did, it is more than made up for by the great public service that freedom to copy provides.

  • http://the-goddess.org/blog/index.html Morgaine Swann

    To answer Nate’s question, CNN is only marginally better than Fox in it’s support for Bush’s agenda. Elsewhere on the net it is referred to as “Cesar’s Network News”. Some hosts are better than others. Lou Dobbs will actually stand up for the American worker, Paula Zahn is a Republican tool, and the rest fall somewhere in between. There’s still too much cheerleading and not enough outrage.

    Jon Stewart said it best when he recently interviewed CNN’s Wolf Blitzer – he asked if the press was suffering from “groupthink” or maybe, “retardation”.

  • http://www.eire.com/ Antoin O Lachtnain

    So are FOX gonna sue? Are they hard enough?

  • three blind mice

    “Old FOX news video clips, by being slapped together into a documentary, do not reduce profits to FOX News, and even if they did, it is more than made up for by the great public service that freedom to copy provides.” – Philip Dhingra

    mr. dhingra, the last clause of the 5th amendment to the US Constitution says, “…nor shall private property be taken for public use, without just compensation.”

    if the people’s elected representatives are specifically prohibited from taking private property for the public good without due process (and just compensation) why should the people accept that a non-elected, non-representative, private organisation be able to do so?

  • http://www.independentreport.org Greg Turner

    I think that Roger Ailes misses a singular point in his little tirade: if news media is doing a good job and trying hard to maintain factual reporting, then they won’t have to worry about someone taking their clips. I think the New York Times is a fine example. They had a tough time a while back when it was discovered that some of their articles had not been researched well and contained glaring errors. However, they apologized, said they were wrong for letting it happen, and promised they’d work harder to prevent that kind of thing in the future. That’s why no one will end up taking the New York Time’s articles and cut them up to paint a bad picture of the newspaper. If the allegations hold water, the NYT will probably say, “You know what? You’re right. We did a poor job with that. Sorry, we’ll try harder in the future.” Why, it’s almost refreshing!

  • http://sethf.com/ Seth Finkelstein

    Now, now, three blind mice, as you know the copyright law contains within it a balancing provision in the test of fair use. I can’t see the *informed* argument that a reasonable trier of fact wouldn’t find that _Outfoxed_ qualifies as fair use under the section 107 fair use test. Of course one has to be able to afford the attorney (which is where Lessig comes in here :-)).

    Many of the comments here demonstrate how deep a hold come from the rhetoric of “PROPERTY!” “STEALING!” “THEFT!”

  • jt

    Greg:

    You must not be keeping up with the blogosphere and their coverage of the NYT’s rough time with facts.

    I notice at least a couple major factual errors per week.

    Here’s one example:

    http://justoneminute.typepad.com/main/2004/07/lets_roll_over_.html

  • http://www.journalisticfraud.com Bob Kohn

    If you need any proof–other than my book, Journalistic Fraud (http://www.journalisticfraud.com)–that the NY Times has a liberal slant to its news pages, read the latest column published by the Times’s public editor: http://www.nytimes.com/2004/07/25/weekinreview/25bott.html

    Bob

  • Mr. Mehra

    Mr. Three Blind Mice:

    The U.S. Constitution contains numerous restrictions on the Government. It contains relatively few restrictions on private citizens.

    If you take the position that the Government is elected, and private individuals and groups are not, and so by extension all restrictions on the Government apply even more strongly to the states, people, corporations, nonprofit organizations, etc., then you turn the Constitution on its head.

    Or is this logic only applicable to takings for you?

  • Anonymous


    I can�t see the *informed* argument that a reasonable trier of fact wouldn�t find that _Outfoxed_ qualifies as fair use under the section 107 fair use test. Of course one has to be able to afford the attorney (which is where Lessig comes in here :-)).

    thank you for providing the link, seth.

    MoveOn used material copyrighted by FOX to produce a film highly critical of FOX. it seems to us, uninformed arguers that we are, that the intent and purpose of MoveOn’s film was to undermine not only the value of the copyrighted material they pilfered, but to discredit the entire FOX network potentially depriving them of viewers and ultimately advertising revenue.

    at least we imagine that the folks at MoveOn.com are hoping that their film will have such effect. in any case, the “potential” negative effect of MoveOn’s use on the value of the copyrighted work is significant.

    this isn’t fair use, it’s not even fair. this is the argument that the Roger Ailes and the NY Post are awkwardly trying to make: criticism is fair, but use your own words.

    presenting comments out of context, or in another context, is among the most misleading forms of criticism there is. the critic says “look, it’s in his OWN words” and this gives a perceived credibility to the criticism that may well be unmerited by a complete view of the facts. add video and sound to this and the potential to mislead is multiplied manyfold.

    the art of criticism may well be better off if critics are forced by copyright to abandon th�s particular form of hatchet attack.

  • three blind mice

    first, we forgot to put our names to the previous comment.

    second, mr. mehra, you have completely missed our point.

    we were responding to Philip Dhingra’s comments that MoveOn’s copyright infringement may be “more than made up for by the great public service that freedom to copy provides.�

    we are talking about taking private property for the public good.

    in a democratic republic one elects representatives to make such decisions.

    if the people’s elected representatives are not allowed to take private property without due process and just compensation, then it seems perfectly consistent with constitutional principles that private individuals and organisations should neither be allowed to confiscate private property in the name of the public good.

  • Stephen Cochran

    Mice, Fair Use creates a copyright exception for criticism. It is generally held that the person doing the criticism, and their political beliefs, is irrelevent to the fact that criticism is legal.

    Using excerpts of a work for critical review is allowed. Using less than 2 hours of a network’s programming to review 6 months (and more) of programming is well below the threshold used in movies (a couple of minutes for a 2 hour movie) and books (a couple of pages).

    Your position seems to be “they are biased, and being unfair, and should not be allowed to do this”, which has no bearing at all on the position of Fair Use criticism. Do you think the movie studios want Ebert to show clips then say “Avoid this movie like the plague”? No, but that’s just the way life is. Whining “But they don’t like us, so that’s not fair” doesn’t change the rules.

    The _right_ way to attack OutFoxed is to turn the tables – use clips of Fox to show that it does approach news gathering and dissemination in a “Fair and Balanced” manner. I wonder why no one feels that that’s a workable solution. Hmmm?

  • Some Random Law Student

    Three Blind Mice –

    Sorry, no. For the same reason that Bill O’Reilly telling Jeremy Glick to “shut up” is not a First Amendment violation, Greenwald’s use of Fox footage is not a Fifth Amendment taking. No property is being taken by the government for public use, so the provision is simply inapposite. And since the Constitution gives Congress the power to establish the bounds of the copyright system, they can limit the exclusive rights granted in any way they like — including a fair-use carve-out.

    SRLS

  • Jardinero1

    Here’s my take on each part of section 107; tell me what you think.
    (1) wouldn�t you agree that this film is serving a commercial purpose for its producers?
    (2) the material used wasn�t just Bill O�Reilly reading the A.P. wire. It was the uniquely bombastic, slanted, conservative,yet original, Fox material. The internal memos were certainly unique to Fox.
    (3) Substantiality is hard to define. Thirty minutes of Fox material in the context of thousands of hours of Fox broadcasts is not much. But the documentary could not stand by itself without the material. In that sense it is substantial.
    (4) While laughable, Fox could argue that this will weaken the market for their material. I believe and I think Fox believes that the opposite is true. This documentary is beneficial to Fox, which is why they play along. Greenwald should have charged Fox for the priviledge of having their material aired in this manner, the way they charge in Hollywood to have products placed in movies.

  • Anonymous

    Jardinero1, are you saying that movie reviews in a newspaper or on TV are not substantially commercial? Book reviews?

    Regarding (2), it doesn’t matter what the source of the content was. Do you think a movie review can’t show clips because it isn’t just Arnold reading the newspaper? The point isn’t to review the recitation of facts, it’s to review the creative process, tone and presentation. This is true for OutFoxed just as much for Ebert’s review of “Gigli”.

    For (3), substantially has been defined, albeit loosely. Courts have gone so far as to allow the inclusion of an entire chapter of a book. If a review can include 5% of a book (assuming 20 chapters), why can’t OutFoxed include less than 0.05% of the last 6 months of Fox’s programming?

    Everyone knows that “to see is to believe”, to the effect that seeing a clip of the movie being reviewed is much more effective than just describing the clip. Often, seeing the clip makes all the difference in the world, transforming the criticism from the level of subjective opinion to objective reality.

    How many times has O’Rielly specifically stated what did or did not happen during his interview with Jeremy Glick? On review of the actual segment, how many of those statements proved to be false? How would you propose a reviewer to show the audience the difference between his statements and reality if the audience were not given the opportunity to view the segment in question.

    This is the essence of the critical review process. You say what you think, and you _show the evidence to back up your opinion_. In this case, the evidence is Fox’s own broadcasts. Without this, the critical review process falls apart, because it opens it up to the audience’s subjective “belief filter” – i.e. “Yeah, Ebert says that’s Afleck was lousy, but how do I know he’s not exaggerating?” You show them.

    Finally, regarding point (4), exactly when is Fox going to release this DVD boxed set of the last 6 months of their news programming and commentary? These shows aren’t rebroadcast or syndicated. They don’t go into reruns during the summer. How exactly is releasing .05% harming Fox’s ability to commercially exploit that material? It might harm their ability to suck the public into their world of fantasy and delusion, but that’s neither here nor there. Movie reviews do that legally every day.

  • Nathan

    Mice,
    We are not talking about taking property. What property has Fox been deprived of? What property can Fox no longer use because it has been taken? That is the problem with the idea of “intellectual property” and the “ownership” of ideas: it is an abstraction that doesn’t fit very well. Copyright simply gives an author some control over how their creative work is replicated in return for sharing that work with society. Talk about copyright violations instead of “taking private property”, you’ll sound less shrill.

  • Jardinero1

    Dear Nameless Poster,

    Outfoxed is not a movie review.
    The (1),(2),(3),(4) aren’t numbered talking points. They refer to the specific parts of sec 107. You can look at them and see why movie reviews and critical essays pass the fair use test.
    (1) Is Outfoxed more commercial or educational? It seems pretty commercial to me and only states the obvious to its audience.
    (2) Is the borrowed content original? Probably
    (3) I suggest that one could define “substantive” on the basis of whether this documentary could stand without use of the original material.
    (4) I said this was laughable and stated why.

    Other news organizations that take their journalistic work more seriously than Fox, Dow Jones & Co for example, would already have unleashed the dogs if it were borrowed from in this way.

  • Stephen Cochran

    Jardinero1, sorry I forgot to put my name in. No, OutFoxed is not a movie review. It is a review of a television network’s suite of programming. More than a review of a single show, it is a review of many shows, and the network in general.

    Why does it matter that it isn’t a movie review? Really, why? Why is it less valid a case of Fair Use than a movie review?

    It can’t because of the commercial test, because Movie, Book, TV, Play, etc. reviews are by and large for commercial purposes. The fact that it is a review for commercial purposes doesn’t change the fact that it is a review or critique. Frankly, at $6.99 a pop one would be hard pressed to push the “commercial purposes” argument anyway.

    The originality of the borrowed content isn’t an issue, either. Every review is a review of original material (unless the item being reviewed is a plagarism).

    Of course it could “stand” without the use of the borrowed material, just as a movie review could. They could have described the events, the actions, the attitudes, the inflections, all without showing a second of Fox footage.

    Would it be as effective? Absolutely not. Especially in this case, because without the presentation of the “original material” most of the audience would not be able to go and compare the reviewer’s opinion against the original. Unlike a movie, you can’t to back and see it days/months/years later at your leisure. For the most part, if you weren’t watching when it first aired, you won’t be seeing it again. Ever.

    I saw you call it laugable. Sorry if it sounded like I was attacking you – I wasn’t. I was just using your thoughts as a sounding board for my responses. There are too many people who don’t think of it as laugable. Sad, really.

  • Jardinero1

    What I meant by laughable is that Fox could be harmed by all this really great publicity. Fox is not news, it’s product. Rupert Murdoch only cares about additional viewers and the additional ad dollars they bring in. Ironically, this documentary and all the frenzy it whips up just feeds the monster. There is nothing so sweet for Rupert than to have his adversaries do all the heavy lifting for him.

  • http://sethf.com/ Seth Finkelstein

    General comment: please read about what the tests *mean* in determining fair use.

  • Joseph Pietro Riolo

    To Three Blind Mice:

    You need to provide legal support for your
    assertion that copyright infringement is
    equivalent to taking of private property.
    Is there court opinion that states so?

    The problem with your perspective is that
    you wholly ignored the First Amendment
    that is largely responsible for the
    restrictions on the copyright’s exclusive
    rights. Allow me to quote several
    sentences from Eldred v. Ashcroft:

         In addition to spurring the creation
         and publication of new expression,
         copyright law contains built-in First
         Amendment accommodations.

         Second, the “fair use” defense allows
         the public to use not only facts and
         ideas contained in a copyrighted work,
         but also expression itself in certain
         circumstances.

    The problem with your thinking is that just
    because there is a word “property” in the phrase
    “intellectual property”, they automatically
    mean the same. As I stated in other places,
    there are different kinds of property in the
    same way as there are different kinds of
    elements in the periodic table of elements.
    Also, there is a gulf of difference between
    tangible and intangible things, a difference
    that you are still blind to.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • Nate

    Sorry, the New York Times is not liberal, that self-serving editorial notwithstanding. I’ve been reading the Times since the 70s, and back then it was liberal. Ever since they began to position the paper increasingly at upper middle class residents of the City and the suburbs, to maximize the desirable advertising dollars, the coverage in the paper has become increasingly conservative. That is riles the Right is because the Right has become increasingly conservative to a further degree. So while the Times is to the left of the Right Wing, it is hardly liberal. The Times is so devoted to the status quo that it has become the very definition of “conservative.”

  • http://en.wikipedia.org/wiki/User:Jamesday James Day

    Three blind mice,

    17 USC 106: “Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize”

    17 USC 107 (that is, section 107 referenced above): “the fair use of a copyrighted work … is not an infringement of copyright”

    I presume that you can see from this that a copyright holder is never granted a monopoly over fair use and that it is, therefore, impossible for it to be theft, because Fox News never owned that particular monopoly right.

  • http://www.cs.duke.edu/~justin/ Justin

    James hit on this, but I just want to elaborate. Control over copying and distribution of an original work of authorship is a right granted by the government. The federal government creates a limited monopoly over your work and allows you to enforce that monopoly in civil (and sometimes criminal) courts. The fair use exceptions are the federal government saying “Here are instances where we will not allow you to exercise monopoly control over your work.”

    Jardinero1: While the nature of this work is both commercial and educational, it is also political (re: part one of the 17 USC 107 exceptions). And as for the movie review/Fox review debate, think about how much content Ebert and Roeper use over a one-hour show. The copyright holder for that material is the respective studio, and probably totals 45 minutes of a 50-minute show. (See Stephen’s response).

    -jdm

  • http://en.wikipedia.org/wiki/User:Jamesday James Day

    Joseph,

    Grand Upright v. Warner begins:

    ‘”Thou shalt not steal.” has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed. Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country.’

    The decision is, of course, entirely wrong on the law in a couple of respects: that a request for permission to use a portion of a work indicates that a work has a valid copyright and that any amount of copying means there has been copyright infringement. Not really a surprise, given the preliminary nature of the action.

    The decision and some analysis is described at Columbia Law Library. I wrote a too-brief summary of the flaws (giving short shrift to the case itself, which needs coverage), at the Wikipedia article on the decision, concentrating there initially on making sure that people didn’t read too much into this one, in the light of preceding and subsequent decisions.

    (If anyone wants to suggest a project for some law students, this is one of many decisions which the Wikipedia doesn’t cover well enough to fully educate normal people yet.)

  • Joseph Pietro Riolo

    Commenting on James Day’s comment:

    I also noticed that some judges used the
    Seventh Commandment (or Eighth Commandment
    in Protestant edition) to justify the punishment
    on copyright infringers. The mention
    of the commandment is just an expression
    of judge’s feeling. It has no legal
    ground in any of the copyright law or
    even the Fifth Amendment.

    They are plain wrong in quoting the Seventh
    or Eighth Commandment because there is another
    commandment that talks about copying. That
    another commandment is the Second Commandment
    in Protestant edition. It forbids copying
    heavenly, earthly, or aquatic objects for
    the purpose of bowing down to the images of
    these objects. But, nothing in the Ten
    Commandments says that one can’t make
    images/copies of others’ works.

    The Seventh or Eighth Commandment has been
    misused and abused by authors and artists
    to justify their selfish motivations, in
    spite of the fact that they commit the same
    sin (their works are built on older works).
    Moreover, some people even go further in
    saying that copying the public domain works
    without paying royalty or copying ideas or
    knowledge without giving attribution is called stealing.
    I don’t know where they will stop but it is time
    to give the Seventh or Eighth Commandment
    rest and leave it alone to its original meaning,
    than stretching the meaning to cover every action
    that the authors, artists, and other people find
    offensive.

    Getting off the soapbox.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

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