Patterico's Pontifications


Is This Fair Use?

Filed under: General — Patterico @ 12:01 am

Does this seem like fair use of NPR’s content to you?

It does to me, and it does to copyright expert Ben Sheffner. (Unlike Orin Kerr, he is a copyright lawyer!)

But it doesn’t to NPR, which has sent a takedown notice to the original poster. (The version embedded above is a re-post by another YouTube user.)

I have downloaded the video, and if this version disappears, I’ll post it on YouTube myself. If NPR sends a takedown notice, we’ll go down that path — the one you go down when you’re fighting for free speech.

Maybe we’ll end up in the Supreme Court and (as Ben suggests) Nina Totenberg can give us her opinion.

73 Responses to “Is This Fair Use?”

  1. It’s supposed to be national… for the nation’s benefit, and it’s supposed to be public, for the public’s benefit. Why would NPR want to takedown someone making their radio public to the nation?

    It wouldn’t be because the person is conservative, would it?

    Leaving aside that this is exactly what fair use was meant for… so you can quote the thing you are criticizing, what does NPR see as its mandate? Why are they opposed to a spirited debate?

    It’s because the best answer to bad speech is good speech, and the best answer to good speech is a takedown notice.

    Dustin (bb61e3)

  2. good for you Pat.

    its amazing how much rats and cockroaches hate sunlight.

    redc1c4 (fb8750)

  3. I suggest we all call our local NPR stations during their beg-a-thons and donate generously in the name of “Doo Dad Pro”, from the town of “Loving You”.

    Dr. K (adb7ba)

  4. now is the time for parents to start parenting their children at home and teaching them the values that they want them to have. if parents have a firm grip on their children’s believe, then they can hear this crap at school and not believe it.

    parents get involved with your kids, you have more influence over your children than anyone outside of the home. take back your children and your ideals.

    southernsue (f95373)

  5. To download Youtube videos, one good solution is the youtube-dl script. Follow the instructions on that page for installation (I don’t have time to write detailed instructions right now, but I might be able to answer questions about how to do it), then type at a command line (or DOS prompt):

    youtube-dl -b (code)

    where “(code)” is the 11-letter (or -digit) Youtube code. E.g., to download a copy of the embedded video Patterico posted above:

    youtube-dl -b G1YodpFMLU4

    The “-b” gives you “best” quality, which is what you’ll want if you plan to re-upload the file. (Otherwise after five or six DL’s and re-uploads, you’d get a degradation of quality, just like running something through a photocopier too many times). Result: you’ll have a nice G1YodpFMLU4.mp4 file on your computer, which you can then rename to something meaningful.

    Robin Munn (b3985b)

  6. National Public Radio makes copyright claims? Isn’t that a bit, um, silly?

    NavyspyII (df615d)

  7. what are the odds NPR wouldn’t have had a problem had the clip been used by a more ‘reasonable’ group?

    steve sturm (369bc6)

  8. Steve, I was going to look for someone on youtube using an NPR recording to make their own political statement, but there are thousands to choose from.

    Many of which are messages urging people to support Obama, and almost all are from people on the left. NPR’s notoriously a place for tax dollars to go into democrat pockets, kinda like most government programs, and they have no problem with democrats using their recordings.

    Sadly, NPR is sponsored by cool companies like BMW and Wal-Mart. It’s pretty annoying that our culture is so proud of its corrupt democrats.

    Dustin (bb61e3)

  9. Since it’s the public’s tax dollars going to this abomination of a news outlet, they can go screw themselves over how it’s used. If they don’t like their material being used in this manner, perhaps they should think twice about using the public’s monies for this in the first place.

    Dmac (5ddc52)

  10. It won’t stop until you can legally abort at week 41 and have sex at week 40.

    And yes, the slippery soap argument is valid for the supporters and apologists (most Liberals) who would destroy our children for their own pleasure and ego.

    But Fox News …. now that is evil.

    HeavenSent (01a566)

  11. NPR gets really pulled out of shape when it comes to Teh Ghey. Several months back it censored a review of the documnetary Outrage — silencing all referenes to the film’s subjects, ie Charlie Crist, other closeted politicians. The reviewer, Nathan Lee (a well-established film critic), protested and had his name removed from the broadcast.

    Running this “Yes on 1″ ad suggests a further discussion of the issue. Was there any?

    David Ehrenstein (2550d9)

  12. I’ve always disliked NPR with its liberal bias and snooty sounding reporters.

    Alta Bob (e8af2b)

  13. The old saying, “when you point a finger at someone you’ve got three more pointing back at you,” is never more applicable as when the righties are bad-mouthing the lefties.

    The funniest part is you guys seem to be unaware of it.

    mikeb302000 (6127bb)

  14. I like NPR, although I oppose government funding for it.

    I support gay marriage.

    But, wow, the takedown notice seems wildly misguided. Sheffner’s post is (as is typical for him) excellent. I don’t claim major copyright expertise, but I’m reasonably well-read on Fair Use as it applies to political campaigns.

    This is a really regrettable position by a quasi-governmental agency to stifle speech. I hope they come to their senses soon.


    JRM (355c21)

  15. mikeb90210 is still batting 1.000. Congrats.

    JD (07f478)

  16. Mikeb: Oh yeah? Ptttbbbbbbb! Nyah Nyah. Same to you but more of it. I know you are but what am I?

    Did I leave any out?

    Steve B (5eacf6)

  17. I use KeepVid to download YouTube clips, then put them on my PSP/Crackberry.

    Crusader (f17d93)

  18. Steve B,

    I’m rubber; you’re glue. What you say bounces off me and sticks to you.

    John Hitchcock (3fd153)

  19. No, Mikeb, the funniest part is what you are unaware of.

    Thomas (b7fe33)

  20. State radio shouldn’t have any more entitlement to copyright than any other government agency.

    happyfeet (f62c43)

  21. mikeb, I’m sure, if you look all over the place, that you will find some conservative ordering people to take down some fair use speech.

    But so what? We aren’t doing that. I don’t think this blog has ever done anything like that. So your complaint is completely wrong. A lot of people resent government money going into quasi political campaigns like HHR and NPR, and resent liberals treating conservatives like they are subhuman, and not allowed normal speech, criticism, news, etc. You seem to think we can’t even point this system out, because we’re somehow worse. you can’t say why, though. No need for details or evidence… we’re just subhuman republicans you’re bashing.

    Dustin (bb61e3)

  22. Gun-totin’ bitter clingers, you all are.

    JD (07f478)

  23. JD, I resemble that remark!

    John Hitchcock (3fd153)

  24. Golly shucks, JD, you done said it right. Let’s go chew some snuff and hate racially diverse folk.

    Dustin (bb61e3)

  25. Dustin – I forgot to close the /sarc tags. Sorry.

    JD (07f478)

  26. I’d like to see what mikeb302000 means by his post. I’m baffled, I admit. Please defend and explain it mike.

    quasimodo (4af144)

  27. JD, no, the sarcasm was quite clear and I was laughing with you, friend.

    Dustin (bb61e3)

  28. NPR is way out of line here. The next GOP Administration and Congress ought to clean that house, and PBS, then the Judiciary.

    PCD (ba8fe0)

  29. quasimodo – Mike baffles himself.

    Gotcha, Dustin. I am kind of slow this morning, which makes it pretty much like every other morning.

    JD (07f478)

  30. NPR is paid for with tax money. That should put ALL of its content in the public domain. Probably doesn’t, but it should. In any event it should get the least favorable treatment possible when it comes to Fair Use, since all use seems fair.

    Kevin Murphy (3c3db0)

  31. “A lot of people resent government money going into quasi political campaigns like HHR and NPR, and resent liberals treating conservatives like they are subhuman, and not allowed normal speech, criticism, news, etc.”

    Subhuman is as subhuman does.

    Life is like a box of “Ex-Lax.”

    David Ehrenstein (2550d9)

  32. JD, cut the sarcasm, it makes me lose count reloading these mags.

    AD - RtR/OS! (408097)

  33. AD, don’t bother counting. Use a speed-loader and when no more rounds can be squeezed in, strip two rounds out to preserve the spring and move on to the next mag. That’s how I do it.

    John Hitchcock (3fd153)

  34. John, you need to buy some better springs.
    And, I was being my more than usual sarcastic self in response to JD’s load of sark.

    “Can you wait a moment, I’m busy reloading?”

    AD - RtR/OS! (408097)

  35. #21 JD:

    Gun-totin’ bitter clingers, you all are.

    You rang?

    EW1(SG) (edc268)

  36. 29.NPR is paid for with tax money

    Unless I’m misreading their 2008 Form 990, about 1% of their revenue is government grants. That’s a rounding error in a financial statement.

    My initial reaction is that the fair use claim is rock solid. I despise gay marriage opponents, but everyone has a right to free speech (of which fair use of copyrighted materials is a crucial component)

    jpe (e31238)

  37. jpe don’t be a stupidhead. Sorry. jpe please don’t be a stupidhead. The way NPR losers suck the government tit is that the dirty socialist government gives our tax monies to the dirty socialist NPR local stations so they can turn around and buy NPR’s dirty socialist propaganda programming what is in slavish service to the little president man’s dirty socialist state.

    NPR has been telling this 1% lie for years.

    [note: fished from spam filter. –Stashiu]

    happyfeet (71f55e)

  38. AD, I realized. I guess I wasn’t being wild-eyed enough.

    John Hitchcock (3fd153)

  39. jpe, how much money is that? How much of my hard earned money went to the NPR? What about tax breaks? A lot of their money is funded by state institutions, too.

    How much of yours went to Fox News and Rush Limbaugh? Oh wait… they pay taxes instead of get them.

    The NPR is government money used for democrat campaigns. It’s that simple. Why don’t they attempt to make a profit, or represent conservatives? Because they are in the tank and stealing our money.

    It’s time to cut them off entirely. No tax breaks, no state money, no federal money. NPR would die within a month.

    Dustin (bb61e3)

  40. Using information for a cause that the original author doesn’t believe in does not constitute copyright violation.

    Patricia (c95a48)

  41. Comment by John Hitchcock — 10/22/2009 @ 9:51 am

    Which is why I don’t listen to talk-radio when I’m at the reloading bench…
    losing track of what you’re doing there can cause severe problems…
    this is just the ‘net, and now that I have a spill-proof cover for the keyboard…
    but, everytime I have to wipe the monitor off I have to re-do all the post-its.

    AD - RtR/OS! (408097)

  42. jpe nicely showed us how leftists despise people that disagree with them, while we just think they are wrong-headed.

    Today would be a good day to clean my M700 APR. I think they made a BGR(?) Recently, but Better Half would castrate me if I brought that home.

    JD (cb1063)

  43. A lot of their money is funded by state institutions, too.

    It would’ve shown up on the 990 line 1c (government revenue). The 1% is inclusive of gvt support from all levels.

    If you want more info, go get the 990 from NPR’s site. (I already closed it, and you can go there as easily as I can)

    @ jd: I don’t despise people that disagree me on most matters. When it comes to homophobes, though, any ethical person would and should recoil.

    jpe (08c1dd)

  44. When it comes to calling people homophobes, though, any ethical person would and should recoil.


    John Hitchcock (3fd153)

  45. Unlike the head-scratching that results from calling someone a “Hoplophobe”.

    AD - RtR/OS! (408097)

  46. When it comes to homophobes, though, any ethical person would and should recoil.

    Just as they should with racists. But when you get to define and label what is racist/homophobic, you can choose whom to recoil against.

    For example:

    Rush Limbaugh ==>> recoil in horror

    Al Sharpton ==>> Way to go Al!

    Stop me if this is too accurate. We shouldn’t have any of that.

    Dr. K (eca563)

  47. Disagreeing with you does not make one a homophobe. It does, however, make you a jackass.

    JD (cb1063)

  48. Dr K nails it.

    Al Sharpton is elevated by the people who want me to take them to be the final authority on race. Right.

    Dustin (bb61e3)

  49. For the record, I do have a serious problem with “sodomy advocates” when they attempt to practice it on me.

    And if that qualifies me as a homophobe, then so be it.

    Dr. K (eca563)

  50. Chiming in:

    I like NPR, although I think claims of its liberal bias are overblown.

    I support gay marriage and voted for it in California, and the only reason I haven’t donated to No-on-1 is that I think it’s inappropriate for citizens of one state to donate to campaigns in other states.

    But I agree with JRM: the takedown notice is absurd, and I agree with the sense that many have that the takedown notice was only issued because of a disapproval of the political position of the people using the clip.

    I want the voters of Maine to defeat Measure 1, and I have serious problems with the behavior of the Yes-on-1 campaign, but that doesn’t make this behavior on the part of NPR OK.

    aphrael (73ebe9)

  51. Happyfeet – What do you think of NPR ?

    JD (cb1063)

  52. aphrael:

    Respectfully, please try to listen to NPR through a neutral lens. I have heard NEWS stories that show the liberal view first and last, with a decidedly minimal reference/discussion of the opposing view sandwiched in the middle. that is, when they can be bothered to fairly represent the other side. Their health-care reform coverage is heavily slanted to ObamaCare.

    Their opinion segments on ATC (Daniel Shore) are decidedly one-sided. I have yet to hear a balanced view from a noted conservative (non-RINO).

    Listen to their “entertainment” shows and the bias drips off of Teri Gross, Ira Glass, or Garisson Keeler, and you might change your mind on that.

    Dr. K (eca563)

  53. aphrael, I can understand why someone might like NPR, but I’m surprised anyone would seriously think accusations of bias against them are overblown.

    I find them stuffy and overwhelmingly desperate to show they are intellectual. I like classical sometimes, and I listen to their news upon occasion. But have a tremendous financial advantage over private radio, and are aggressively political partisans. This 1% claim is an old canard. They need to be on the same footing as private radio if they want to be so ridiculous about it. I feel the same way about Health and Human Services, though.

    Dustin (bb61e3)

  54. The last “conservative” commenter I heard on NPR was Yakov Smirnoff; but then, he actually knew what the radical alternative was.

    AD - RtR/OS! (408097)

  55. #47 aphrael:

    I like NPR, although I think claims of its liberal bias are overblown.

    During the Cold War, among my many military duties was evaluating the effect of Soviet propaganda on news reporting (not world wide, just in areas that my unit was likely to operate in).

    If anything, evaluations of NPR’s “liberal” bias are badly understated.

    EW1(SG) (edc268)

  56. NPR is not just 1% publicly funded. That’s baloney. Follow the money:

    About National Public Radio funding:

    “According to the 2005 financial statement, NPR makes just over half of its money from the fees and dues it charges member stations to receive programming, although some of this money originated at the CPB [Corporation for Public Broadcasting] itself, in the form of pass-through grants to member stations. . . . Typically, NPR member stations raise funds through on-air pledge drives, corporate underwriting, and grants from state governments, universities, and the CPB itself.”

    Regarding the Corporation for Public Broadcasting:

    “The Corporation for Public Broadcasting (CPB) is a private non-profit corporation created by an act of the United States Congress and largely funded by the United States Federal Government to promote public broadcasting. Historically, 15% to 20% of the aggregate revenues of all public broadcasting stations have been funded from federal sources, principally through CPB. . .”

    “CPB’s annual budget is comprised almost entirely ofan annual appropriation from Congress plus interest on those funds. For fiscal year 2009, its appropriation was $400 million.”

    “Public broadcasting stations are funded by a combination of private donations from members, foundations and corporations (60.4% of 2006 total revenues of all stations), state and local taxes (22.2% of 2006 total revenues) and federal funds, principally through CPB (17.3% of 2006 total revenues).”

    The last line quoted there says that (in 2006) public broadcasting stations got 17% of their total revenues, not 1%, from Federal sources.

    Official Internet Data Office (203a2f)

  57. And the last line quote there also indicates that (in 2006), public broadcasting stations got 39.5% of their revenues from Federal, state and local tax money. Not 1%.

    Official Internet Data Office (203a2f)

  58. Yeah, well, why bother with facts when you can spew whatever shit sounds good?

    Dr. K (eca563)

  59. And, let’s not forget that the 60.4% number is tax-exempt funds.

    AD - RtR/OS! (408097)

  60. In ’08, NPR got ~40% of its revenue from member stations. If local stations get ~20% from the feds, then we’re talking ~8% fed revenue on a consolidated basis.

    And that still has squat to do w/ whether “we own” NPR.

    jpe (08c1dd)

  61. jpe: Way to move the goalposts, buddy!

    First estimate 1%, now 8%.

    Does not even address the state/local tax monies that go to the local stations that PAY for the programming.

    It’s National PUBLIC Radio. Paid (partially) with your federal and state tax dollars. Whether you like it or not, we own it.

    Dr. K (eca563)

  62. thank you, Mr. Stashiu.

    On balance JD I think NPR is a useless badge of stupid what its prissy rich white users wear proudly even though it makes them look like unquestioning locksteppy princoxes and also tote bags are involved.

    NPR is a parasite what regurgitates enfeebling dirty socialist propaganda into its host and also listening to Steve Inskeep is like listening to a quaalude-addicted homosexual kindergarten teacher telling you that tax hikes are good for you boys and girls over and over and over again.

    happyfeet (71f55e)

  63. It should be 0%.

    Anyway, nowhere does it say in the excerpts above that NPR gets 40% of its revenue from member stations. The excerpt says that public broadcasting stations get about 40% of their revenues from taxation on all levels. The best estimate given above for NPR is that it gets “just over half” its funds from the Corporation for Public Broadcasting. Just over half of 40% is just over 20% (close to the 17.3% number for Federal support given in the last excerpt), not 8%.

    By the way, Federal government publications are not copyrighted.

    Official Internet Data Office (203a2f)

  64. WHY are we funding these squirming maggots?

    GunnyG (6d735a)

  65. “Squirming maggots” is an absolutely charming way or referring to your political adversaries.

    aphrael (e0cdc9)

  66. Thank you, happyfeet.

    Aphrael – That was a drive-by, and hardly representative. Jpe despises us 😉

    JD (05d719)

  67. JD: oh, likely. But as a member of the community I feel a duty to object to such things. Failure by the regulars to do so will result in an overrun.

    aphrael (e0cdc9)

  68. You don’t comment often enough, BTW.

    JD (05d719)

  69. I used NPR for pronunciation lessons.

    So am I violating their intellectual property rights when I pronounce Volvo as Vowel-vo, and Carnegie Hall as Car-NEGGY Hall?

    NavyspyII (df615d)

  70. Nobody has questions about how to install the youtube-dl script?

    Good. So if the video that Patterico embedded gets hit with a copyright claim and taken down, I expect a dozen new copies to be uploaded by the regulars here. :-)

    Robin Munn (bd2ea4)

  71. In my exalted opinion, this is fair use. 17 USC § 107 states:

    Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the 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.
    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

    The NPR material is being used for criticism and comment. While the work is used for a commercial nature (to support the salaries of the NPR folks), the nature of the work is not such that it is typically copied for a commercial purpose. The substantiality of the portion used in relationshi to the copyrighted work as a whole might be argued either way. As Ben Sheffner points out, the use made by the party accused of infringement does not and will not affect the market for or value of the copyrighted work.
    All things considered, this is fair use.
    On the other hand, there is the case of the Shepard Fairey (see
    Fairey admits basing his Obama poster on an AP photo. There was and is a market for AP photos, and Fairey avoided complying with AP’s marketing program. The Fairey v. AP case is still pending.

    Ira (28a423)

  72. If local stations get ~20% from the feds, then we’re talking ~8% fed revenue on a consolidated basis.

    Which means you just directly contradicted your earlier claims, you ignorant git. Do you actually bother to read your own posts before blathering again?

    Dmac (5ddc52)

  73. JD: on the days that i’m sufficiently unbusy to be here, I comment a lot. On other days, I’m just absent. :)

    aphrael (e0cdc9)

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