Version 2.0
Michael Savage, enemy of free speech
By Tony Kondaks
December 10, 2007
Michael Savage has his knickers in a twist. The Council on American-Islamic Relations (CAIR) reproduced portions of his radio broadcast on their website without his permission. CAIR was protesting Savage’s alleged bigotry towards the Muslim community and, in that time-honored American tradition, raising funds in the process. Cries of desecration of my copyrighted material! and CAIR is violating my free speech! emitted from Savage as he initiated a lawsuit for damages.
Yes, Savage is correct when he says that this is a "free speech" issue. But it is CAIR's speech that is being infringed by this frivolous lawsuit, not his. Indeed, if his suit were to succeed, Savage will set a legal precedent that will weaken first amendment rights, not strengthen them.
Copyright infringement is a battle between two competing interests: the plaintiff claiming the defendant is guilty of copyright infringement and the defendant claiming the right to free expression under the first amendment. It’s virtually impossible to be on both sides at the same time, yet Savage has, disingenuously, donned the dual mantle of first amendment crusader and victim of copyright “theft“.
Savage‘s Cause of Action for Copyright Infringement is chock full of accusations against CAIR for the manner in which they reproduced his words: “Repackaged”, “manipulated”, “misportraying”, “packaged spin”, “taken out of context”. By not including segments of his shows in which he presented other, more favorable opinions of Islam, Savage claims CAIR misappropriated his work. It is this theft, he says, that violates his free speech.
Assuming his accusations are accurate, isn’t Savage justified in claiming the right not to be taken out of context?
No, he isn‘t.
“Taken out of context” is in the eye of the beholder. By its very nature, any such claim is subjective. When it comes to the exchange of words and the cut and thrust of political discourse, the marketplace of ideas is intrinsically “unfair” -- it is one in which person A will never feel he is being fairly represented whenever his opponent, person B, reproduces A’s own words.
Taking one out of context -- even verbatim reproductions of copyrighted material out of context -- has nothing to do with copyright infringement. It does, however, have everything to do with free speech; and in this case it’s the speech of the alleged usurper, CAIR, not Savage. The right to misrepresent another’s intent and, indeed, take one out of context is protected by the first amendment.
But what do we do when we feel someone has misrepresented us in the course of reproducing our very own words? We don't have government-mandated truth committees in this country that police speech and, certainly, this is not something that Mr. Savage is asking for.
What we’ve decided to do instead is enable a free exchange for speech in order to ensure that all who desire to speak to an issue, either pro or con, can. Addressing inaccuracies, insults, misunderstanding, and out-of-context reproductions are the very currency of this marketplace.
The fair use doctrine outlines the parameters under which the unauthorized reproduction of copyrighted material can take place. One of the qualifications is that a reproduction be transformative, not merely a superseding of the original work. “Transformative” means to add to the body of knowledge surrounding the work when it is reproduced. One way to do this is by comment or criticism: “Generally, use of a work to comment on the work itself somehow will qualify as transformative”
CAIR is citing Savage’s words in order to express their opinion that he is anti-Muslim. They have chosen to make this point by reproducing snippets from his show. Their reproductions are transformative because they are adding something new to Savage‘s words. Indeed, we know it is new because Savage denies being a bigot.
Thus, CAIR has transformed Savage’s original work by attaching a new interpretation to it. This use fulfills the intention of copyright law which is to stimulate creativity and enable ideas and information “to flow for the benefit of the public good“. Verbatim reproductions within the context of criticism and comment add to the body of knowledge of the works used. We may not agree with CAIR’s observations. Indeed, we may even believe them to be incendiary and inaccurate, just as others may have found Savage's original work.
One need look no further than Savage‘s own Cause of Action in order to conclude that CAIR’s reproduction is transformative. Here is what Savage says in point #26 of his complaint:
“Just as all religions are free to practice in the United States, Michael Savage is free to exercise his beliefs without having someone who opposes his views steal his property and convert it for their own use. “ (my emphasis)
In point #76, Savage himself, without any help from CAIR, destroys any possibility that he could collect damages when he claims that “The publication of this significant segment combined with the characterization of the segment, meaningfully reduces the value of that segment on resale…” (my emphasis)
“Convert it for their own use” and their “characterization of the segment.” That is precisely what CAIR did; they transformed the work by characterizing it and converting it to a new meaning unintended by Savage when he created the original work. CAIR has thereby complied to fair use standards in exactly the way envisioned by the statute.
Ironically, fair use ensures that when reproduction does occur, it will almost always be “out of context” because, as a general rule, only limited reproduction is allowed: “…the less that is used in relation to the whole, e.g., a few sentences of a text for a book review, the more likely that the sample will be considered fair use." In other words, you can’t put in too much or else you’re going beyond fair use and moving into actual infringement.
The only objective way in which CAIR could have assured Savage that they preserved his context would have been to reproduce all of his words, instead of just the select few they did. Only a full and complete reproduction of everything Savage ever said about Muslims -- which would have included the positive things that he claims CAIR omitted -- could have communicated a context that would have satisfied him. But here’s the catch: if they had, the full context would have superseded the original work. Making full and complete copies of original works is piracy and would have moved CAIR that much closer to unfair use.
In a sense, Savage is saying is that the only thing that would have made him happy is if CAIR did commit copyright infringement.
Savage goes on to complain that “CAIR organized contacts with various advertisers“ and presented his copyrighted material to them in a “false context“ in order to get them not to advertise on his show.
Walmart, JC Penney et al may at one point decide to withdraw as sponsors from the Savage Nation but this certainly won’t be actionable against CAIR. “…unauthorized use is not fair use if the unauthorized use tends to lessen or negatively impact the potential sale of the original copyrighted work, interferes with the marketability of the work, or fulfills the demand for the original copyrighted work.” But this doesn’t apply to CAIR’s reproduction because the “stolen” works have already been broadcast by Savage, advertising sold for the shows in question, and Savage paid. Future revenue from not-yet-created Michael Savage works may suffer if advertisers feel that such future works will not be compatible with whatever marketing strategy is in place at the time that decision is made. This holds true even if such a decision results from CAIR presenting them with allegations of Savage bigotry, replete with the unauthorized reproduction.
How about resale of the original work? Savage feels its resale value as either a repeat broadcast or as part of a compilation broadcast has been damaged. But this makes no sense because, as we’ve seen, Savage himself implicitly acknowledges that CAIR’s use was transformative, which is almost always not actionable. Besides, there is virtually nothing stopping Savage from repackaging the original material and reselling it in any form he likes. If anything, the publicity that Savage has conjured up by his trumped-up charges against CAIR will in all likelihood make resale of the material in question more valuable. Savage could only find action against CAIR “if the new work becomes a substitute for, or makes the purchase unnecessary of, the appropriated copyrighted work itself. This use would certainly not be sanctioned as fair use.”
Taking someone out of context -- if that is indeed what CAIR is doing -- may be unethical and it may be unfair, but it isn’t grounds for either copyright infringement or collecting damages..
This is especially true when the party claiming injury has means to counter anyone he feels has misrepresented him. Savage is not some paralyzed stroke victim with a left hemisphere brain injury that has rendered him unable to speak or write. He is not without the resources to defend himself. Indeed, he has more than his fair share of opportunity to redress any wrongs from which he feels himself a victim. You see, it just so happens that the aggrieved Mr. Savage has his very own bully pulpit.
Michael Savage can, to his heart’s content, do and say what he pleases on his very own radio show, 3 hours a day, 5 days a week. And it isn’t as if no one is tuning in. Savage claims to have 8 million listeners -- sympathetic voices all -- willing and able to indulge his sob stories and lamentations of the injustices visited upon him by the evil CAIR. It is on this forum that Mr. Savage can correct any “misappropriations.” He can even invite his soon-to-be ex-advertisers to listen in to hear his side of the story as they cancel their contracts with his show.
In addition to the 8 million daily listeners, Savage claims an incredible 2,300,000 page views to his website every month.
How many web viewers does CAIR have? According to Alexa.com , the web traffic service, CAIR is ranked a measly 180,704 as of December 6, 2007. Hardly an internet powerhouse (although I suspect that, thanks to the free publicity Savage has given them, that ranking will soon shoot up).
But what about Savage’s claims that “CAIR is not a civil rights organization but instead is a political vehicle of international terrorism.” The attacks against him and others “are part of a pattern and practice to silence critics of CAIR and critics of CAIR’s foreign agenda under the false guise of civil rights,“ he says.
I have no idea whether CAIR is composed of terrorists or their sympathizers. For all I know, CAIR very well may be out to put a bomb under your mother's sofa. But until then CAIR will have the right to exercise their freedom of speech in a manner compliant with the rule of law.
Savage is being too cute by half. Accusations of terrorist front or improper use of non-profit status have no place in a copyright infringement lawsuit. If Savage wants to play FBI agent or IRS auditor, let him apply to those organisations for employment. I am sorry to inform him but in America, we even extend free speech to alleged terrorist sympathizers, just as we do to verbose talk show hosts quick on the draw to unfavorably label those whose speech he disagrees with.
Savage the Crusader warns us: be afraid of what’s to come if we allow things to continue as they are.
Yes, we should.
If Savage prevails, we should all be afraid…very afraid.
Savage’s lawsuit is an attack on people’s right to protest speech they find offensive; it’s an attack on our ability to use economic pressure against those we oppose, a tool that has proven invaluable to our democracy ever since its founding (anyone remember a certain incident involving tea?).
And he’s demonstrated that he’ll abuse and misuse the court system in order to get CAIR to tow the line. Frighteningly, Savage is ready to attack free speech in order to do it. Even more frighteningly, he claims free speech as his cause celebre as he attacks and undermines it.
You, Mr. Savage, have proven yourself an enemy of the first amendment and your lawsuit is a classic example of how people misuse the courts to further their own agenda. You are wasting the court's time and I hope and pray that CAIR presents a motion for dismissal on the basis of its obvious frivolity, that the court grants their motion, and that you are ordered to pay costs.
Now, that would be justice.
Tony Kondaks [send him mail] is an inventor and entrepreneur who lives in Mesa, Arizona. His websites are located at: www.iDepict.com and www.lottostocks.com.
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