Michael Weiner has a radio show. For obvious reasons, he has chosen to do the show under the name Michael Savage instead, and “The Savage Nation” attracts a few million listeners per week. They listen, in part, to hear Savage rant on conservative topics. On October 29, 2007, listeners were rewarded with this bit of enlightened monologue on the topic of Muslims:
What kind of world are you living in that you let them in here with that throwback document in their hand, which is a book of hate. Don’t tell me I need reeducation. They need deportation. I don’t need reeducation. Deportation not reeducation. You can take CAIR and throw them out of my country. I’d raise the American flag, and I’d get out my trumpet if you did it. Without due process. You can take your due process and shove it… Wherever you look on the Earth there’s a bomb going off or a car going up in flames, and it’s Muslims screaming for the blood of Christians or Jews or anyone they hate.
There’s more… much more (Savage believes that “90 percent of them are on welfare,” for instance), and it’s not surprising that the Council for American-Islamic Relations (CAIR) might have a different view. CAIR posted a four-minute excerpt of this show on its website along with a rebuttal, and Savage then filed a lawsuit against the group, alleging copyright infringement.
Savage’s legal filing stands in a class by itself. Little of the filing talks about copyright at all; the vast majority is an extended rant about “CAIR and it’s [sic] terror connections” and how the group was “tied to terror from the day it was formed.”
Savage isn’t just upset about copyright; in fact, he complains at one point that his remarks were taken out of context and that many other selections (i.e., more copying) from his show would indicate his regard for Muslims. Savage is upset that CAIR used the clip to convince some advertisers to pull their support for his show, a practice he seems to think is illegal.
He also makes a racketeering claim against the group and says that “the role of CAIR and CAIR-Canada is to wage PSYOPS (psychological warfare) and disinformation activities on behalf of Whabbi-based [sic] Islamic terrorists throughout North America. They are the intellectual ‘shock troops’ of Islamic terrorism.”
The EFF has now stepped into the debate (Savage refers to them as “liberal attorneys”), helping to prepare CAIR’s response. The response, filed on January 30, takes issue with Savage’s “172-paragraph legal broadside laced with falsities and xenophobic fantasies to punish and intimidate the Council for American-Islamic Relations.” Their point is a simple one: as a matter of law, the US allows anyone to use copyrighted material for the purposes of criticism or commentary.
“Fair use” law in the US is based on four general tests that give fair use its elastic character. But copyright law also contains several specific exemptions, including the one for criticism. The EFF runs through the four factors: purpose and nature of the use, the nature of the copyrighted work, the amount used, and the effect of that use on the value of the copyrighted material.
The EFF believes the lawsuit was a brazen attempt to “use copyright law to punish a vocal critic,” and the group points out that using copyright law to stifle dissent has become a common practice against critics on either side of the political spectrum. Michelle Malkin was treated to a DMCA takedown notice last year, for instance, after using clips of the performer Akon in a critical video post.