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FAIR USE

Lawrence Lessig, in a “Guest Column” in today’s Variety writes:

“Robert Greenwald’s latest film, ‘Outfoxed,’ is a political documentary about Republican bias at Fox News. It is also, as the New York Times Sunday Magazine dubbed it, a ‘guerrilla documentary.’

“In addition to interviews with former Fox employees, academic studies evaluating the ‘Fox effect’ and internal Fox memos, Greenwald has used a significant number of clips from Fox News to show the bias that the slogan ‘fair and balanced’ belies.

“He had no permission to use those clips.

“Fox has called Greenwald’s use stealing. It has warned other networks that if they exploit his ‘illegal copyright infringement,’ those networks will open themselves up to similar criticism — presumably by Fox…

“If Greenwald’s use of Fox’s content is ‘fair use’ — as we plainly believe it is — then it is no more ‘stealing’ than walking across a sidewalk in front of a neighbor’s home is trespassing on a neighbor’s property.

“Copyright is property, but like all property, the rights it grants are limited. ‘Fair use’ is one such limit, constitutionally compelled, giving critics such as Greenwald the right to use a limited amount of copyrighted material without asking permission first.

“Fox claims it is ‘fair and balanced.’ Is it?

“Bill O’Reilly promised Fox viewers that he would report the news of the war [in Iraq] ‘without an agenda or any ideological prejudice.’ Did he?

“These are important questions at any time, but especially now, as the answers so dramatically affect current public policy. And they can be answered effectively only with a work that can use that the images that created the bias alleged.

“Journalists should encourage such criticism. If news networks are not as they say they are, then journalists and critics should be able to show it. If Greenwald’s argument is wrong, then let another filmmaker contradict it. Or if ABC is just as bad, then let ABC be outed, too.”

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