Court Rules Fair Use, Dismisses Radio Host's Suit

by , Jul 29, 2008, 7:00 AM
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Michael Savage radio hostA federal judge has dismissed radio host Michael Savage's copyright infringement lawsuit against the Counsel on American-Islamic Relations, which had posted excerpts of one of his programs online.

Judge Susan Illston in San Francisco ruled that the clips, totaling four minutes out of the two-hour Savage Nation program that ran on Oct. 29, 2007, constituted a fair use.

"Defendants used plaintiff's material in order to criticize and comment on plaintiff's statements and views," Illston wrote in the 21-page ruling.

Savage filed suit for copyright infringement and racketeering last December. Among other allegations, Savage asserted that the CAIR took his statements out of context in order to harm his public image as well as to help the organization raise funds. The clips were excerpted from a program in which Savage said, "The Quran is a document of slavery and chattel," and that Islam is "a religion that teaches convert or kill, a religion that says oppress women, kill homosexuals."

Illston discounted both arguments. She ruled that even if the organization used the clips to raise money, doing so would have been a fair use of Savage's work. "The sum of plaintiff's allegations and evidence demonstrate that there will be no actual or potential market impact on the original work," she wrote. "The audience that might donate and listen to the audio segment on defendants' Web site is separate from the audience that plaintiff possibly could stand to profit from in using his Web site to sell the audio content at issue."

She also ruled that the organization didn't violate his copyright by presenting the snippets in a way that misrepresented his views. "Plaintiff's allegation that defendants repackaged the original, misportraying its meaning and message, creates a presumption that the work is transformative," she wrote. Copying material for transformative purposes, such as commentary, is generally considered fair use.

Digital rights advocates cheered the ruling. "It seems to be relatively self-evident that you can take small snippets of somebody's content in order to criticize it," said Sam Bayard, assistant director of the Citizen Media Law Project at Harvard's Berkman Center for Internet & Society. "But it's a whole lot nicer to have a federal district court saying it."

A similar issue came up in late 2006 when the blogger "Spocko" posted audio files of comments made by right-wing talk show hosts at Bay Area ABC affiliate radio station KSFO. there, ABC Radio sent a cease-and-desist letter to Spocko's hosting company, 1&1 Internet, which then took down his site. The digital rights group Electronic Frontier Foundation intervened, and ultimately, Spocko found a new host.

The Electronic Frontier Foundation also got involved in the Savage case, weighing in on behalf of the Counsel on American-Islamic Relations.

Illston also dismissed Savage's racketeering allegations, but said he could file an amended racketeering complaint by Aug. 15. His lawyer, Daniel Horowitz, said he plans to refile that complaint and is also considering appealing the portion of the ruling dismissing the copyright infringement claim.

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