Tomorrow’s New York Times Magazine has an article on an upcoming documentary on the subject of Fox News, made by Robert Greenwald — "How to Make a Guerilla Documentary." The documentary, "Outfoxed: Rupert Murdoch’s War on Journalism," makes extensive use of Fox News footage, and there’s a copyright fight expected. (all typos below mine — touch typing on a laptop is really not my forte!)
Greenwald argues that this represents precisely the kind of corporate control of public information that he and his legal team want to challenge by strengthening the right to fair use — the legal principle that allows you to use copyrighted material without permission for puposes of commentary, criticism or parody. Despite the principle’s self-evident logic — consider the impossible position of a critic forbidden to quote from the book he is reviewing — it is murky in practice, and nowhere more so than in film. Part of the problem is that while a fair-use claim might stand a good chance of prevailing in court, as a practical matter the high costs of litigation force most filmmakers to simply remove the material in question.
The legal strategy for “Outfoxed” was still being devised by Greenwald’s legal team, which includes the Stanford law professor Lawrence Lessig and Chris Sprigman, a fellow at Stanford Law School’s Center for Internet and Society. Lessig and Sprigman were deciding whther it would be most advantageous to go through the motions of asking Fox for permission (which it would very likely refuse), to release the film and wait to see whether Fox wouls sue or ask a judge to rule on their claims right away by issuing a so-called declaratory judgement.
All things considered, I hope they passed on the declaratory judgement — such things lately seem not to be terribly successful for the fair use side of things! There should be a link at the NYTimes tomorrow, or later tonight. Otherwise, you can go to a newstand and read it now.