The gossip blogger sent DMCA takedown notices for a YouTube video because it shows three seconds from his video blog. But does the ad constitute fair use?

By the time YouTube removed an ad from the National Organization for Marriage (NOM) due to a DMCA takedown request, the video had already received thousands of views. The takedown notice had been sent to the video sharing site from representatives of Mario Armando Lavandeira — who blogs under the pseudonym Perez Hilton — and claimed that because the ad features about three seconds of footage from Perez’s video blog, it violates his copyright. Representatives also sent a cease and desist order on Friday to NOM demanding that the organization — well known for its opposition to legalizing gay marriage — stop playing the ad in television markets.

The ad in question — which lasts about a minute — features comments from Miss California Carrie Prejean in which she states that marriage “should be between a man and a woman,” a comment directly followed with a clip of Perez calling her a “dumb bitch.” (an email requesting comment from Perez for this article was not returned). The ad ends by accusing proponents of same sex marriage of trying to “silence opposition” rather than debating the issue.

Today I spoke to Brian Brown, executive director of NOM, and he labeled the takedown request and cease and desist demands “completely bogus” and said that his organization plans to fight back against them.

“I don’t know people’s motivations, but it seems pretty clear that Perez is embarassed about the fact of what he said,” Brown told me. “There’s no other reason of why he would try to take it down, because clearly he’s going to lose under well established fair use rules. It’s clearly fair use. I don’t know any lawyer who would look at this with a fair mind who would say otherwise.”

The organization’s lawyers have already sent both a letter to YouTube asking it to reinstall the video and a reply (PDF) to Perez rejecting his copyright claim. But though it’s still not clear whether YouTube will comply with the request, at least one conservative blogger has defiantly uploaded the ad onto his own YouTube account and said he’d fight any copyright claims if Perez’s lawyers came after him.

“Ultimately we just filed the response and I think [the video] will continue to be up,” Brown said to me. “I think that it’s really laughable. [Perez] is the one who went after Carrie. He went after Miss California, he put it up on a public blog. If he didn’t want people to see it, then why did he do it? And now I think he realizes that people don’t like the fact that Miss California speaks her mind and has to be the subject of attack by Perez Hilton. And it doesn’t look good for him. So clearly it’s not that hard to figure out. He doesn’t want it up because he’s embarrassed by it.”

I asked Brown whether he’d heard that bloggers were protesting by uploading the video on their own. He said that he had seen that and he was glad that they were doing so, but that he was still frustrated by YouTube removing the video because it means they would have to redirect all the links on the NOM website, which can be an inefficient process. Though he placed most of the blame on Perez for sending the DMCA takedown, he said he’s at least a little bit frustrated by YouTube’s unwillingness to substantiate claims from copyright holders and evaluate whether a clip constitutes fair use.

But Ben Sheffner, a copyright attorney who has been covering this issue on his blog, says that it’s not that simple. And he should know — he previously worked for 20th Century Fox, where a significant part of his job was sending DMCA takedown notices to video sites like YouTube. He also served as special counsel on John McCain’s 2008 presidential campaign, where he had to respond to DMCA takedowns sent by news organizations like Fox News, which claimed that McCain couldn’t use its footage in his campaign ads.

“I would say this,” Sheffner said in a phone interview. “Virtually all of the blame for the bogus takedown notice goes to the sender of the bogus takedown, meaning the copyright owner — Perez Hilton in this instance. There is an argument to be made that the host — meaning YouTube or whomever it is — should evaluate the notice and see whether an issue is really fair use before it’s taken down. But if they don’t do that, I’m sympathetic to their reason, and they have several reasons.

“One of them is they get so many takedown notices that they don’t have the resources to do an analysis on each one. And for a company like YouTube, I’m very sympathetic of that. They have hundreds of thousands of takedown notices every year. It would be extremely difficult. But as long as they get an facially valid takedown notice, meaning it sort of includes the required information, they’ll take it down automatically.”

The other reason, he said, was that the way that the DMCA was written is that a host site is only protected from lawsuit if it complies with the takedown expeditiously. This means that the site does not have the time to evaluate the thousands of takedowns submitted every year and yet still protect itself from lawsuits.

As of this writing, the original NOM ad is still removed from YouTube, so it remains to be seen whether the Google-owned company will reinstate it. But this case will likely be closely followed by copyright activists who are wary of media personalities who use copyright claims to silence legitimate criticism.

“It’s a very disturbing development,” Sheffner said. “I consider myself someone to be a strong supporter of copyright and I don’t take a particularly broad view of fair use compared to some people, but the uses that we’re talking about here — it is very clearly fair use. It’s fully non-commercial, it’s political, it’s extremely short, and it really doesn’t do harm for Hilton’s video blog. If people are less likely to support Hilton and his positions after watching the National Organization for Marriage ad, that’s too bad, the law does not recognize that as a sort of harm that copyright is meant to protect.”

Simon Owens is a media journalist and social media consultant. Email him at simon.bloggasm@gmail.com or read more of his writing at his blog

Should the news site label its columnists and editors as “doctors” when they don’t have medical degrees?

Peter Lipson, an internist who specializes in the prevention and treatment of illness, doesn’t remember exactly when he first began criticizing health-related articles at the Huffington Post, but his agitation has reached its apogee over the past few weeks. During that time the health section — placed within the larger “Living” tab — has published articles claiming possible links between vaccinations and autism, a piece on colon cleansing and detox, and a swine flu article stating that Americans should “stay home as much as possible,” “avoid public places unnecessarily,” and “get some surgical face masks and wear one when you need to be in public places, even if you feel a little foolish and until others have caught on.”

Lipson is a blogger for ScienceBlogs, run by Seed Media Group, and has been writing a series of critical pieces attempting to debunk the claims in many of these articles. He isn’t the only one; several of the other science bloggers under the same domain have been piling on as well, and recently two of them have gone after the credibility of “Dr.” Patricia Fitzgerald, a ” licensed acupuncturist, certified clinical nutritionist, and a homeopath,” who has received a “Master’s Degree in Traditional Chinese Medicine and a Doctorate in Homeopathic Medicine.” She also — to the science bloggers’ disdain — happens to be the Huffington Post’s “wellness” editor (an email sent to the website requesting comment for this piece was not returned).

“Part of it is a misrepresentation of qualifications,” Lipson told me in a phone conversation. “They started putting the word ‘Dr’ in front of everyone’s name — more or less for anyone who has a doctorate in something or other — and Patricia Fitzgerald claims to have a doctorate in homeopathy, whatever that is. Homeopathy is a completely discredited fantasy. When you give that kind of credibility — I mean first you invite them to a well-known mainstream outlet, you let them call themselves a doctor when they’re not really qualified, and then you let them interview other people and present them as professionals — it just layers on and layers on.”

It would be different if they admitted up front that these stories were all editorial in nature, the internist said, and presented them as such. He compared the method of fact checking in the health section of HuffPo to that of the Gray Lady. “They need to exercise some kind of journalistic integrity,” Lipson said. “When you read the New York Times, whether you agree with what they do or not — people can argue about the quality having gone down — but when you read the editorial pages and you read the news, you know there’s some editing going on. You know they don’t just say, ‘write whatever you want and we’ll throw our name above it.’ They have real editors.”

As a point of reference, Fitzgerald recently wrote a post about actress and former Playboy model Jenny McCarthy and her book, Healing and Preventing Autism. “Jenny McCarthy and thousands of concerned parents, doctors, and health advocates aren’t just waiting for an official cure,” Fitzgerald wrote. “They’re finding answers, and getting results.” (italics in the original) The article states that McCarthy promotes “biomedical intervention” and the actress claims that “thousands of children have improved with this type of therapy.”

Inevitably, the article does touch upon McCarthy’s claims about possible dangers from the “excessive” use of vaccines. Fitzgerald writes at the end of this section, “The autism-vaccine link is being studied because there are actual concerns that warrant these studies. Some studies support the use of certain vaccines, while other studies do not. Often there are conflicts of interest within studies. It can make anybody’s head spin trying to sort through these studies.”

Given that the vaccine-autism links are widely rejected by the scientific and medical community, this “two-sideism,” as Lipson calls it, is infuriating.

“It is irresponsible and it’s immoral,” he said. “They’re allowed to write whatever they want — I make that clear. But they should show some editorial fortitude that there are some lines that you shouldn’t cross. It’s an idealogical problem.”

Simon Owens is a media journalist and social media consultant. Email him at simon.bloggasm@gmail.com or read more of his writing at his blog

A survey found that 65% of Daily Kos’ discussion of a recent Olbermann segment is negative.

Last week, Fox News’ Sean Hannity made an off-the-cuff offer to partake in waterboarding for charity, an announcement that MSNBC’s Keith Olbermann met with his own charity offer.

“For every second you last, a thousand dollars — live or on tape, provided other networks’ cameras are there,” the MSNBC anchor said. “A thousand dollars a second, Sean, because this is no game. This is serious stuff. Put your money where your mouth is, and your nose. Oh, and I’ll double it when you admit you feared for your life, when you admit the horrible truth — waterboarding, the symbol of the last administration, is torture.”

Over the past few years, members of the liberal blogosphere have been among Olbermann’s most ardent supporters, perhaps none more so than the diarists at Daily Kos. During every show of his the community hosts an “open thread” and Olbermann himself often blogs at the liberal site.

But the negative response the Kos community had for this Olbermann segment and others indicates a certain level of animosity is growing towards the MSNBC host. As of this writing, Olbermann’s charity offer has spawned nine diary posts and nearly 1,400 comments at Daily Kos. I surveyed a sizable percentage of these comments and found that approximately 65% of the discussion of Olbermann is negative. About 30% of the comments are positive, while the remaining 5% is neutral.

“Someone should ask Olbermann why he would want to inflict any such treatment on any other living human,” one commenter wrote. “And, if what he is proposing comes up short of what we did with our ‘enhanced interrogation techniques’ what’s to be gained by giving Hannity any attention.”

Much of the negative coverage followed in this vein, while Olbermann supporters said that the anchor’s offer was a good idea, one that would finally teach Hannity that waterboarding constitutes torture.

“I disagree,” one person wrote. “This is co-opting Hannity’s stunt. I think Hannity is now in a losing position. Either he backs out, or Olbermann makes some actual good come out of Fox News.”

This isn’t the first indication that the Daily Kos community has soured on Olbermann. When CNBC’s Jim Cramer appeared on the Daily Show — an appearance that many considered an embarrassment to CNBC and its parent company — the Kos community harshly criticized Olbermann for not highlighting the interview on his show. Many accused him of bowing down to alleged demands that MSNBC anchors not mention the Cramer/Stewart interview. Olbermann himself showed up in the comment threads to defend himself from these charges.

But if this is a sign that the Kossacks have turned on Olbermann, who will take his place in the cable news lineup as the liberal blogosphere’s darling? Both Rachel Maddow and (ironically) FNC’s Sheppard Smith have been getting favorable coverage from Daily Kos in recent months. Might one of them become the blog’s newest champion?

Simon Owens is a media journalist and social media consultant. Email him at simon.bloggasm@gmail.com or read more of his writing at his blog