Opinion

The Guardian uses copyright to shush a critic of its cultural criticism

The Guardian uses copyright law to stop a commentary on one of its commentaries

Nobody likes being mocked, especially by someone who has the facts on his side.

Nevertheless, using copyright law to try to silence the mockery isn't likely to win you any new admirers.

This lesson was recently delivered by the city of Inglewood, which sued local resident Joseph Teixeira in March for re-using snippets of official city videos in pointed YouTube critiques of Mayor James T. Butts Jr. The First Amendment Coalition brought the lawsuit to (unfavorable) light May 29, leading to denunciations of the City Council and Butts by a host of media and advocacy groups, including The Times' editorial board, the Volokh Conspiracy and the National Coalition Against Censorship

This week it was the Guardian's turn. The London-based newspaper asked YouTube to remove an eight-minute video from a provocative cultural commentator who goes by Sargon of Akkad. Sargon's unabashedly politically incorrect -- and wickedly funny -- piece took apart a video by the Guardian's Eliza Anyangwe on damaging stereotypes of Africa supposedly advanced by Western media. The move drew protests from Sargon's supporters, particularly on Twitter, who accused the newspaper of hypocrisy.

What the Guardian did isn't as legally suspect as Inglewood's attempt to claim copyrights over video footage created with tax dollars. But on a public-policy level, it's wrongheaded too.

According to the conservative news site Breitbart London, YouTube took down Sargon's video in response to a request by the Guardian. Sargon then appealed for help on Twitter, saying the newspaper had filed a "false claim" of infringement. The video has since been restored, although it's not entirely clear why.

For its part, the Guardian told Breitbart that "[w]e hope to come to an agreement with Sargon of Akkad and have offered advice on how to engage with Guardian content without breaching copyright." After Breitbart posted its piece, however, Sargon said on Twitter that he hadn't spoken to anyone from the newspaper.

As in the United States, copyright law in England creates an exemption for uses deemed "fair" by the courts. In both countries, people can quote text and reuse images or videos without getting prior approval from the author if the new use passes certain legal tests.

That's the basis for Sargon's assertion that the Guardian's infringement claim was false. But the law may not be so clearly on his side. Here's what the British government's Intellectual Property Office says about the latest version of the exemptions in its publication, "Guidance for Creators and Copyright Owners":

"Will this mean people can 'quote' any amount of copyright material without permission? No. The change only allows use of material where it is genuinely for the purpose of quotation, and only where the use is fair and reasonable (e.g. it does not replace a commercial sale). So, for example, it could permit a short quotation that is necessary and relevant in an academic paper or a history book, but it would not permit a long extract."

Sargon used seemingly every frame from Anyangwe's 3 minute, 49 second video. He found fault with most of the points she made, as well as the way she made them. After watching his piece, it's clear that there's no point in going to the Guardian's site to see the original because he's just shown you the whole thing.

That means Sargon effectively reduced the number of people who would see the commercial the Guardian placed at the front end of Anyangwe's video. It's hard to tell how big an effect it had; by late Wednesday afternoon, Sargon's video had attracted about 53,000 viewers, but who knows how many of these would have found out about Anyangwe's work otherwise and viewed it at the Guardian's site.

This was the heart of the Guardian's objection -- that Sargon had copied one of its videos in its entirety. It didn't matter that Sargon was eviscerating Anyangwe's arguments about the media's mistreatment of Africa, although that probably didn't help.

As a creator of copyrighted material, I get how irritating it can be when one's work is copied wholesale and redistributed online. (Insert your joke here about how rarely my words are worth copying.) On the other hand, it would have been hard for Sargon to offer his critique without showing his viewers how she'd made her point. In this respect, the case is like the one in Inglewood, although the latter is more outrageous because the material being copied was a public record, and Teixeira used only snippets of it.

Here's another similarity between the two: It's alarming to see copyright law used to stifle debate in the public square. The Guardian put Anyangwe's opinion on its site to get people to change the way they perceived and discussed Africa. Sargon responded by challenging Anyangwe's characterization of the problem (or rather, to suggest that maybe there isn't one). In other words, the Guardian wanted a debate, and it got one.

What did it expect? Or was it just surprised that anyone was paying attention? 

Follow Healey's intermittent Twitter feed: @jcahealey

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