We're going to go off-topic here for a moment, and on to one of my personal favorites: the First Amendment. We invoke the 1stAm a lot, especially online. If someone comments on your blog and you decide to erase the comment, there will be people who cry "You're infringing on my First Amendment rights!" Employees of companies, when told they can't blog, cry 1stAm foul.
Most recently, Redlasso, the excellent-and-therefore-most-likely-to-be-shutdown video service cried 1stAm. It allows users to go to any point in a network's content, "clip it," and post it in its own embedded player. Redlasso did not get permission from the nets to do this. While it would be smart for the nets to go along, or at least partner, they have decided not to. That is their right.
According to the usual way these things go, the networks have issued a cease-and-desist to Redlasso. And, according to the way these things go, Redlasso has told the networks to stick it. Nothing new. But Redlasso is on shaky (and incorrect) legal turf with this statement:
"Clip usage by bloggers is an exercise of first amendment rights to provide social commentary on newsworthy events."
Ah, no. A private company deciding how it wants its content used has nothing to do with the 1stAm. Here is the relevant portion of said Amendment:
Congress shall make no law ... abridging the freedom of
speech, or of the press...
Get that? Congress shall make no law. Not "NBC shall not make it a rule..." or "ABC can't sue you if..." or "If a guy doesn't publish what you say, that's illegal..."
The 1stAm does not, not, not give you an absolute right to say, post, and write whatever you want wherever you want with whomever's content you desire.
A better argument? Fair use. And here, I think we have a stronger case for Redlasso.
From the U.S. Copyright Office:
Section 107 contains a list of the various purposes for which the reproduction of a particular
work may be considered “fair,” such as criticism, comment, news reporting, teaching,
scholarship, and research. Section 107 also sets out four factors to be considered in determining
whether or not a particular use is fair:
-
the purpose and character of the use, including whether such use is of
commercial nature or is for nonprofit educational purposes;
-
the nature of the copyrighted work;
-
amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted
work.
Indeed, Redlasso, in other instances, has employed the Fair Use defense. But it looks like the networks may still be a step ahead, according to Paul Sweeting at ContentAgenda:
The networks call it unlicensed syndication of their content (although
they also shrewdly include charges of trademark infringement and unfair
competition, which, of course, have no fair use exemptions).
So, in fact, without really, really deep pockets, RedLasso may find itself sued out of existence before it begins. That would be too bad - this is a really good product, and partnering with the nets would be a win-win.
Either way, Congress will certainly make no law infringing on the right of RedLasso to say whatever it likes.
Or so says the analysis of your correspondent, based upon his masters in a field wholly unrelated to law...
