Wednesday, August 18, 2004

Stifling Dissent

Lawrence Lessig reports:

Though Michael Moore's Fahrenheit 9/11 has grabbed the headlines, another documentary is at the center of this debate. In August, Robert Greenwald will release an updated version of his award-winning film, Uncovered: The Whole Truth About the Iraq War. Greenwald has added a clip of President George W. Bush's February interview with Tim Russert on Meet the Press, NBC's Sunday morning talk show. In the clip, the president defends his decision to go to war - astonishingly unconvincingly.
Greenwald asked NBC for permission to run the one-minute clip - offering to pay for the right, as he had done for every other clip that appears in the film. NBC said no. The network explained to his agent that the clip is "not very flattering to the president." Greenwald included it anyway.

Copyright law gives NBC the power to deny anyone the use of its content, at least presumptively. If you want to rebroadcast Meet the Press or sell copies on the Internet, you need NBC's permission. There are exceptions, at least in theory. The law, for example, exempts "fair uses" of copyrighted material from the control of its owner. If a clip is short enough, or if its use is sufficiently transformative or critical, then the law allows its use, whether permission is granted or not.

In practice, however, the matter isn't that simple. Because copyright law is so uncertain, and because insurance companies that indemnify films don't much like risk, the practice among auteurs seeking major distribution is to cut any clip for which permission isn't granted - fair use notwithstanding. The costs of defending a fair use right in court - and, more important, the costs if any such defense should fail - make the risk prohibitive for most filmmakers. Defense of fair use could run hundreds of thousands of dollars - several times the budget of a typical documentary. And losing this type of claim could expose the filmmaker to $150,000 in damages for each copyright infringed. In a world in which Fox News sues comedian and author Al Franken for parodying "fair and balanced," a cautious director can't be too careful.

... NBC insists it is remaining "neutral" by denying others use of the interview. But there's nothing neutral about restricting either critics or supporters from repeating the president's words. But the issue here isn't really NBC's motive. It is the president's. Why would any president allow a network to copyright his message? No self-respecting president would speak at a club that excluded women: Whatever rights a private organization may enjoy, a president stands for equality. So why did the current leader of the free world, who rarely holds press conferences, agree to speak on a talk show that refuses to license on a neutral basis the content he contributed? Is vigorous debate over matters as important as going to war less important than protecting his image?

Full Story at Wired Magazine



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