Friday, October 30, 2009

Yes on One Ad Rankles NPR; Maine Public Broadcasting Network, 10/21/09

Josie Huang, Maine Public Broadcasting Network; Yes on One Ad Rankles NPR:

The campaign to overturn Maine's same-sex marriage law is taking on an unlikely new adversary: National Public Radio. NPR wants the Yes on One/Stand for Marriage Maine campaign to stop airing television spots featuring audio from an NPR story because the organization does not want to be associated with a political issue. But the campaign says it is ignoring the cease-and-desist order from NPR and will keep airing the ads.

""This is a ridiculous and frivolous complaint," says Scott Fish, spokesman for the campaign to repeal the gay marriage law, reading from a prepared statement. "Stand For Marriage Maine has the absolute right to use news clips aired on NPR in our advertisement. This is a protected exercise of the First Amendment of the United States Constitution and is expressly contemplated as 'fair use' in our nation's copyright laws."

"Fair use" describes a legal principle in which copyrighted materials can be used under certain conditions, such as how much of it is used, and whether it hurts the copyright holder in any way.The 30-second ad excerpts 20 seconds from a 2004 NPR story titled "Massachusetts Schools Grapple with Including Gay and Lesbian Relationships in Sex Education." The piece examined how teachers were approaching the issue of same-sex relationships following the legalization of gay marriage in Massachusetts.

Of course, fair use, is all subjective, and NPR contends that this is not a case of fair use. "We've not had a potlicial organization use our content in this manner and, frankly, violate our copyright in this manner," says Dana Davis Rehm, a senior vice president at NPR overseeing communications.

She notes that two-thirds of the ad is comprised of audio from the NPR story. She further argues that the TV spots harm the reputation of NPR. "It may give people the impression that NPR permitted the use of the content in this manner, it may give people an impression that NPR has a position on this topic, either for or against the issue being discussed."

NPR has asked the Website YouTube, and other sites that were streaming the video, to stop, which they have. But Rehm says NPR has not yet approached television stations, and is still reviewing its legal options.

NPR could seek a court injunction to completely halt the ads, but it is running out of time. Voters will be asked to decide whether to repeal the same-sex marriage law in exactly two weeks.

Al Tompkins teaches broadcast ethics at the Poynter Institute. "In the two weeks that is going to pass between now and election time, it's highly unlikely that you'd be able to get a court to do much in a way of judgement on this, so the election will be over before you get much legal help."

But David Ardia, who directs the Citizen Media Law project at Harvard University, says that NPR may still be able to have an impact with its actions. "When you're talking about a political campaign, where time is of the essense, the fact that a video has been taken down during that time period can actually have the effect the copyright holder wants."

He notes that it is standard practice for a video to stay off YouTube for at least 10 days during which the copyright holder relents or decides to pursue legal action against the user. "And when you're talking about a 10-day window and only two weeks between the take down notice and the election, that can result in the video being down for most of the relevant time period."

Meanwhile, though, the ads are still running on television."

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