The implication that copyright is fundamentally a tool of censorship is a favorite theme among its critics. They rarely miss an opportunity to ring this particular bell when the chance presents itself; and most recently, Cyrus Farivar, writing for Ars Technica, reported that Sirius XM filed a DMCA notice to have an archive of interviews between Howard Stern and Donald Trump removed from the blog site factba.se. On cue, Mike Masnick at Techdirt was quick to describe this as “yet another situation where copyright law is being used to censor information that is in the public interest.”
Or maybe not exactly.
As a general note, it’s a pretty easy target, whenever material is arguably of historic or newsy significance, to make an emotional claim that the exigencies of copyright stand between the public and its right to know. But the hyperbole that is so often employed (e.g. Masnick’s saying the interviews are now in a “memory hole”) invariably suggests that copyright enforcement is tantamount to erasing information or sequestering it permanently from any form of public access.
In this regard, and for the discussion that follows, it’s important to note that just about every major news organization in the world maintains archives of works of historic significance and will license the use of this protected content for any purposes that require licensing. So, Sirius issuing a DMCA takedown notice in this case does not mean they’ve locked the content away for good. In the meantime, if the public is desperately in need of insight into Donald Trump’s character, it seems amply covered.
Masnick states that the Ars Technica article cites “a bunch of lawyers” offering theories as to whether factba.se’s hosting of the radio interviews might be fair use. This bunch is actually four lawyers, all who have publicly espoused varying degrees of copyright skepticism, with opinions siding 3 to 1 that factba.se’s use would likely be held fair use. Masnick then offers a mini analysis of his own, theorizing that hosting Sirius’s content in this manner would favor a finding of fair use under the first, second, and fourth factors. And since neither Mike nor I are actually attorneys, let’s do this…
First Factor: Purpose and Character of the Use
Under the first factor, Masnick states, “…the newsworthy nature of it and the purpose of the archive push it pretty strongly towards being transformative….” I disagree. In fact, what factba.se did was to make available exactly the same content that Sirius has the exclusive right to exploit under copyright. Factba.se did not build upon the work to produce commentary or a new creative expression; and neither did it produce a transformative use akin to the Google Books research tool. As was re-affirmed recently in the KinderGuides case, the fact that a rights holder has not yet made these works available does not forfeit the protection and allow another party to exploit the works in any matter normally protected by copyright.
Second Factor: Nature of the Copyrighted Work
Under the second factor, Masnick notes the relative lack of “originality” in works that comprise interviews between Howard Stern and Donald Trump. This is perhaps the strongest argument favoring a finding of fair use, although a court would have to do a more detailed analysis of the interviews themselves. But as long as we’re making assumptions, there is ample precedent to demonstrate that copyright protects “original” works of a factual nature (e.g. all journalism); and given the irreverent and creative style that made Howard Stern the star he is, it’s very hard to imagine that a court would not find that these interviews meet the “creativity” standard for protection under copyright.
Third Factor: Amount and Substantiality of the Work
We can assume that even the staunchest critic of copyright will agree that this use would likely fail under the third factor analysis because of course factba.se used the entire work.
Fourth Factor: Effect of the Use on the Potential Market
Masnick states that this use “clearly” does not harm the market for the Howard Stern Show, thus implying analysis would tilt toward fair use under the fourth factor. But here, he is either purposely or carelessly applying the wrong standard and adding more noise to the galloping confusion about fair use these days. In a case like this, the court would hardly consider whether or not the use of Sirius’s archival material may cause harm to the market for current Howard Stern programs.
The court would instead consider whether or not the unlicensed publication of these archival materials threatens the potential market for Sirius to exploit these precise works under the exclusive rights of copyright. For example, if Sirius wants to release a special boxed-set of the Stern/Trump interviews, it has the exclusive right to do so; and a use like the one made by factba.se would almost certainly be seen as threatening that potential market. This concept of the rights holder’s potential market is often the most overlooked aspect of the fourth factor when it’s described in articles and blogs for general readers. But potentiality is paramount to how the analysis is generally applied.
Once again, to stress the emphasis made by Judge Rakoff in his KinderGuides opinion, copyright’s exclusive bundle of rights is not a use-it-or-loose it proposition. Simply because Sirius has not yet made these interviews available in this way does not grant factba.se or any other party the right to do so. That the works may be considered newsworthy or historic does not substantially alter this underlying principle.
As is often the case, critics like Masnick are looking for censorship where it doesn’t exist. At least not yet. Yes, the fact that Trump is now president does elevate the historic significance of these interviews, but it is false to assert that this circumstance then demands an immediate release by a party that had nothing to do with producing the works. If there were a substantive revelation in one of the interviews pertaining to matters of state, one could make a solid fair use argument for using that interview or portion in reportage. But as we’re talking about Howard Stern and Donald Trump, I’m going out on a limb and guessing that the full archive is about 80% “locker-room” talk. And while the audience that wants to hear these works as news or entertainment is entitled to do so, the creators who produced them are entitled to exploit them like any other protected work.