Why We Fight

A recent NYT article on the new documentary criticizing Fox "News" Channel offers depressing testimony to the chilling effects of contemporary copyrgiht policies. In this excerpt, we see the filmmaker acknowledging that he will not ultimately deliver the film he wishes to make for fear of copyright litigation (read the last sentence). This will occur despite the fair use exception's enumeration of "commentary" and "criticism" as especially protected acitivies.

''O.K., we have only 16 days, so what's left?'' Greenwald asked. It turned out to be a lot. Sound editing, color correction, mixing. Video was still being downloaded as the editors looked for material to fill narrative gaps in the film; many segments were still in rough shape. Then there was the fact that several major news organizations were unexpectedly refusing to license their clips. (Such licensing is ordinarily pro forma.) CBS wouldn't sell Greenwald the clip of Richard Clarke's appearance on ''60 Minutes,'' explaining that it didn't want to be associated with a controversial documentary about Murdoch. WGBH, the Boston PBS station, wouldn't let Greenwald use excerpts from ''Frontline'' for fear of looking too ''political,'' it said.

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 purposes 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 whether 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 would sue or to ask a judge to rule on their claims right away by issuing a so-called declaratory judgment.

Glancing around the office, Greenwald took in the news of the various permission setbacks and other loose ends with a weary look. He made it clear to the staff that they would all be working on Memorial Day, and every day after that until June 21, when the film locked. ''Let's just go out there and make the perfect movie,'' he said as he sent the team back to their editing docks, ''and we'll figure out what we'll actually be able to use later on.''

If only we could actually see that cut of the film -- the version that was made before this work of commentary and criticism surrenders a portion of its argumentative content in deference to the threat of baseless litigation.

The fun bonus question is whether Fox will be naive enough to sue, thereby assuring reams of free advertising for the documentary. Did they learn anything from Fox (O'Reilly) vs. Franken? I hope not.