Blogger contends posting silly leaked law firm song is fair use

Summary:News reporting is one of the classic examples of fair use, and blogger David Lat contends the doctrine covers his posting a groaningly bad "motivational" song leaked from a large law firm. The law firm disagrees, setting the stage for a DMCA takedown-putback tussle.

Over at Above The Law, David Lat provides irreverent coverage of the insular world of law firms and the judiciary. Today he posted a song produced by the Nixon Peabody law firm, forwarded by an unidentified tipster, that belongs in the bad business music hall of fame. The song was never intended for external consumption, and it's not hard to see why:

Instead of laughing this off and embracing its inner freak as Microsoft embraces Steve Ballmer's antics, the firm has been making saber-rattling, copyright-invoking phone calls to Mr. Lat, requesting among other things that he remove the audio he posted to YouTube. He has declined to do so:

They asserted copyright over the song and asked us to take it down, from our site and from YouTube. We stated our view that posting and commenting on the song constitutes fair use. It also falls within our newsgathering mission as a media organization.

We explained that our site is all about law firms and the legal profession. They said: "We know what you're about."

Nixon Peabody's next logical step, given its difference of opinion with Mr. Lat on the copyright front, would be a DMCA takedown notice to Google/YouTube. This provides a good reason to revisit Wendy Seltzer's go-round with the NFL, and the DMCA ping pong that ensued when she stuck to her fair use guns. Though the fair use analysis is different here, the same process could potentially follow, warranting another link to Chilling Effects' Counter-Notification Generator.

Best of luck David, and thanks for the chuckles. (Note to musically aspiring firms and businesses everywhere: there is no such thing as "internal use only." If you must go down this ill-advised road, think Eagles.)

[Update, 8/24/07:] Seems Nixon Peabody has fired its initial DMCA salvo at YouTube, though Above The Law is still making the "Everyone's A Winner" audio available here.

[Update, 8/25/07:] Round III: the Internet, or more accurately a clever YouTuber named ChurchHatesTucker, stokes the fire (via Ed.):

Topics: Social Enterprise


Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law. For further details please see her professional background and speaking schedule. Denise's career is characterized by her passionate engagement in intell... Full Bio

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