13 September 2007

Defending the Indefensible

There's a mini-kerfluffle going on right now concerning a creationist video and YouTube. Unfortunately, I sort of feel like an ACLU lawyer defending a neo-Nazi’s right to free speech on this one: The creationists have at least a colorable — and probably completely valid — argument in favor of their position.

For those who don't know, Kent Hovind — a thoroughly reprehensible "minister" now serving time for tax evasion and fraud — and his so-called "Creation Science Evangelism" organization have produced a number of pro-creationism videos, hoping that they could be used to deal with the "evils" of Darwinian evolution.1 A group called Extant Dodo has taken some of these videos and added commentary debunking the creationist claims in them, and posted the videos on YouTube. Until the last day or so, the CSE site contained a "disclaimer" of copyright on it. CSE has begun issuing DMCA takedown notices to YouTube over the videos, despite ExtantDodo's claim of fair use.

This time, Hovind et al. may well be in the right, for three reasons:

  1. One cannot “commit a work to the public domain.” It’s an unfortunate loophole in the Copyright Act of 1976 (and the Berne Convention). A copyrightable work enters the public domain only upon expiration or copyright or creation by the United States government. Anything short of that is merely a promise not to sue, which can be unilaterally withdrawn at any time. I think this loophole should be fixed, but that’s the way the law is at present.
  2. Fair use is a defense against a particular claim of infringement, not a right. That is, the burden will be on the party claiming fair use to demonstrate fair use by a preponderence of the evidence. I think the fair use claim is probably a good one, but it is not certain (and yes, I have looked at the videos in question). That means that the party that holds the copyright in the allegedly infringed materials is perfectly within its rights to object to the alleged infringement.

    Unfortunately, satire is not protected as fair use; parody is … for some value of those two terms, which lawyers define differently from (and almost incompatibly with) literary critics and general English usage. Whether ExtantDodo's work is a parody or a satire is an extremely close call under the legal definitions, although in court it would not be. Unfortunately, the courts have not assimilated Justice Souter's declaration in 2Live Crew that parody need not be amusing (which, unfortunately, the Ninth Circuit completely misunderstood in the Dr Juice case, but that's for another time). In this instance, I think a court would find them amusing, and therefore label them parody (of course, one can never tell with some of the judges Reagan and the Bushes have gotten confirmed!). That, however, is beside the point; fair use is a defense ultimately determined by a court, not by claims of fair use.

  3. The DMCA (17 U.S.C. § 512) does not require that all assertions of copyright come from a registered copyright. Thus, whether Hovind et al. have registered their copyright, or previously "disclaimed" it, is completely irrelevant. The DMCA only requires that someone have an exclusive right under the Copyright Act, not the present ability to file suit. In this instance, a rational judge would deny any claim for damages by CSE for past distribution, but a claim for an injunction against future copying and distribution would be valid (absent a fair use defense).

I am tremendously amused by the “infringing” videos and think that they do fall within fair use, and that they perform a valuable public service and engage in speech protected by the First Amendment. However, it’s not my right to make that determination for Hovind et al.; it’s theirs. And if they object to being debunked in this fashion, copyright law — as a content-neutral statute — provides them certain tools to enforce their rights, among them the DMCA. This is distressingly similar to the debate over internet piracy (whether by individuals or multinational conglomerates).

More to the point, even if the dissent is correct that some authors, in the long run, are helped, not hurt, by Database reproductions, the fact remains that the Authors who brought the case now before us have asserted their rights under § 201(c). We may not invoke our conception of their interests to diminish those rights.

New York Times v. Tasini, 533 U.S. 483, 498 n.6 (2001)

  1. For the record, creationism is bunk. So-called "intelligent design" (which should actually be called "inscrutable design," as no "intelligent" designer is going to leave behind an appendix or anaphylaxis) is no better. They're both religious creation myths that should not be allowed to displace science in any forum, whether the classroom or otherwise. That does not mean that they're not speech within the First Amendment's confines, though, and my disdain and disgust for both the speech itself and its proponents is beside the point.