October 10, 2008

Stanford Law School’s Fair Use Project and Bingham McCutchen LLP File Lawsuit Against Radio Talk Show Host Michael Savage on Behalf of Brave New Films

The Fair Use Project at Stanford Law School's Center for Internet and Society and Bingham McCutchen LLP filed a lawsuit today against talk radio host Michael Savage and Original Talk Radio Network, Inc. (OTRN) on behalf of Brave New Films. The lawsuit, filed in the U.S. District Court for the Northern District of California, seeks declaratory relief and damages following improper efforts to silence Brave New Films' criticism of Savage over anti-Muslim remarks he made on his nationally syndicated radio show, The Savage Nation.

On January 18, 2008, Brave New Films created and uploaded to its YouTube channel "Michael Savage Hates Muslims," a short video that criticizes anti-Muslim comments Savage made on his October 29, 2007 radio broadcast. The video uses a total of one minute of audio excerpts from Savage's show in which Savage instructs Muslims to "take (their) religion and shove it up (their) behind" and urges his listeners to confront Muslims in the "supermarket line." In addition to playing this brief audio clip, the Brave New Films' video directs viewers to nosavage.org, a website dedicated to exposing and criticizing Savage's views.

On September 29, 2008, OTRN sent a takedown notice to YouTube demanding the removal of the "Michael Savage Hates Muslims" video. OTRN's notice resulted in YouTube removing the video and also temporarily disabling Brave New Films' entire YouTube channel, which contains approximately 300 videos and is the largest channel through which the company distributes its content.

"OTRN must have known that its takedown notice was baseless not only because using limited amounts of copyrighted material for the purposes of criticism is a textbook case of fair use--but because Michael Savage lost an earlier case about this very same issue," said Anthony Falzone, executive director of the Fair Use Project at Stanford Law School, referring to a copyright claim Savage lost against the Council for American-Islamic Relations (CAIR). On July 25, 2008, the U.S. District Court for Northern California found that CAIR's use of a four-minute audio clip taken from Savage's October 29 broadcast for the purposes of criticizing his anti-Muslim statements was fair use as a matter of law. On August 15, the Court entered a final judgment dismissing the case in its entirety.

"Filmmakers like Brave New Films should not have their free speech rights violated by improper use of the copyright laws," said co-counsel William F. Abrams, a partner at Bingham McCutchen's Silicon Valley office and co-chair of Bingham's IP Practice Group. "The court previously said that it was fair use to use this content. This case enforces Brave New Films' rights to use it." Abrams is also a consulting professor at Stanford.

Brave New Films seeks declaration that "Michael Savage Hates Muslims" makes fair use of defendants' copyrighted material, and damages for misrepresentations OTRN made in the takedown notice it delivered to YouTube.

The Fair Use Project is representing Brave New Films pro bono, along with the national law firm Bingham McCutchen LLP.

About the Fair Use Project

The Stanford Center for Internet and Society's Fair Use Project ("the FUP") was founded in 2006. Its purpose is to provide legal support to a range of projects designed to clarify, and extend, the boundaries of "fair use" in order to enhance creative freedom. The FUP represents filmmakers, musicians, artists, writers, scholars, and other content creators in a range of disputes that raise important questions concerning fair use and the limits of intellectual property rights. In doing so, it relies on a network of talented lawyers within the Center for Internet and Society, as well as attorneys in law firms and public interest organizations that are dedicated to advancing the mission of the FUP.

About the Center for Internet and Society

The Center for Internet and Society (http://cyberlaw.stanford.edu) is a public interest technology law and policy program at Stanford Law School and a part of the Law, Science and Technology Program at the law school.

About Stanford Law School

Stanford Law School (www.law.stanford.edu) is one of the nation's leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business, and high technology. Faculty members argue before the Supreme Court, testify before Congress, and write books and articles for academic audiences, as well as the popular press. Along with offering traditional law school classes, the school has embraced new subjects and new ways of teaching.

About Brave New Films

Brave New Films (http://bravenewfilms.org) produces and distributes films, blogs, television shows and short videos that challenge corporate and political misbehavior, with recent documentaries including "Outfoxed: Rupert Murdoch's War on Journalism" and "Wal-Mart: The High Cost of Low Prices." The company's "bravenewfilms" channel on YouTube contains approximately 300 videos that, together, have been viewed 32 million times.

About Bingham McCutchen LLP

Bingham McCutchen LLP (http://www.bingham.com) is a national law firm with global capabilities and has nearly 1,000 lawyers in 13 offices. The firm represents clients in high-stakes litigation, complex financing and regulatory matters, government affairs, and a wide variety of sophisticated corporate and technology transactions. William F. Abrams is a partner in Bingham McCutchen's Intellectual Property Litigation and Patent Prosecution Group. He has handled a number of high-profile pro bono matters before the Supreme Court of the United States and the California Supreme Court, particularly involving the rights of children and capital punishment issues. Abrams also is consulting professor at Stanford, teaching courses on Children and the Law, Intellectual Property and Capital Punishment.