Michael Savage, Robert Greenwald In Latest YouTube Takedown Tug-of-War

By Eriq Gardner

Brave New Films, the production company run by Robert Greenwald ("Outfoxed"), has filed a lawsuit against conservative radio talk-show host Michael Savage and Talk Radio Network for sending a takedown notice to YouTube.

Besides being a battle pitting one of the more liberal filmmakers vs. one of the more conservative commentators, Brave New Films' lawsuit is the latest salvo testing the boundaries of "fair use" and whether alleged victims of takedown notices can recover damages.

The complaint states that Oregon-based Talk Radio Network sent a takedown notice to YouTube on October 2, the night of the vice presidential debate, over a video called "Michael Savage Hates Muslims," which contains an audio excerpt from the "Savage Nation" program. YouTube took down the video and also disabled Brave New Fillms' channel on YouTube. The channel has been very popular, collecting some 36 million views. The channel was later back up, but Greenwald says the temporary suspension harmed his company at a time of intense political debate.

Greenwald is represented by the Fair Use Project at Stanford Law School. Last week we reported that one of the institute's top lawyers, Anthony Falzone, had blogged about his success getting a court to deny an injunction request made by Yoko Ono to stop release of a documentary that used a clip of a John Lennon song, but bemoaning that the success came too late. At the time, Falzone wrote that the result was "a fantastic lesson in how we might start to solve the fair use dilemma."

It was suggested that Falzone and others may continue the legal strategy used by Stephanie Lenz, who sued Universal for damages after the company sent a takedown notice to YouTube when Lenz' video incorporated a Prince song. Lenz has found success on this claim so far, as a judge ruled that companies need to take "fair use" into account before sending DMCA notices.

This is shaping up to be the central counterinsurgency in content owners' war against digital piracy. Over the weekend, Lawrence Lessig detailed his thoughts in a WSJ op-ed piece titled "In Defense of Piracy" that starts with the Lenz case.