Using Copyright Law To Silence Critics

This story seems like a big deal, no?  

Universal Music Group has abandoned its attempt to silence syndicated conservative columnist Michelle Malkin for her online criticism of one of the label’s controversial artists, the Electronic Frontier Foundation said Monday.

Earlier this month, Universal filed a copyright notice regarding a recent episode of Malkin’s online video in which she called hip-hop star Akon a “misogynist.” She supported her claims with excerpts from his songs and video clips of him with a teenage girl at a Trinidad nightclub.

EFF said Malkin’s video, which was posted on YouTube, was legally protected “fair use” and fought a takedown notice from Universal on her behalf. The video has been put back online.

EFF Senior Staff Attorney Kurt Opsahl called the label’s copyright claim “bogus” and said the company misused a 2001 copyright law. “Shame on any copyright holder who would attempt to use the DMCA [Digital Millennium Copyright Act] to intimidate and silence critics,” Malkin said in a statement.

Malkin, a shrill right-winger with a huge following, doesn’t fit the stereotype of Internet Hero; perhaps that’s why her case didn’t become the cause célèbre that, on the merits, it should be.  It’s chilling that a global media conglomerate would seek to use copyright law — the ill-advised Digital Millennium Copyright Act that Congress passed unanimously in 1998 — to deprive a critic of the weapon of quotation.  

In a piece comparing the Malkin case with a case involving gossip blogger Perez Hilton, FindLaw’s Julie Hilden sheds some light on the legal issues:

Granted, Malkin’s podcast may hurt the market for the Akon video if her listeners end up agreeing with her criticism. But what truly matters is that it’s extremely unlikely that any Akon fan will opt to watch only Malkin’s podcast in lieu of (not in addition to) watching Akon’s music videos or concert video themselves. A podcast criticizing a video is no substitute for the video itself, in the market; it doesn’t provide watchers with anything like the same experience, and thus doesn’t compete with the video itself.


The “fair use” factors are animated and informed by First Amendment concerns, and certainly, the kind of criticism Malkin is providing is strongly protected by the First Amendment. No wonder, then, that UMG backed off, and dropped its challenge.  

The whole thing’s worth reading.

Ironic, isn’t it?  UMG couldn’t make a dime off an obscene, degrading rapper like Akon without the Bill of Rights to protect them.  But the DMCA is like a termite infestation on the First Amendment — and the big media companies put it there.


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