Article

2008-03-08 Home Front: Culture Wars

Judge ready to dismiss Michael Savage lawsuit against CAIR

Archived material is restricted to Rantburg regulars and members. If you need access email fred.pruitt=at=gmail.com with your nick to be added to the members list. There is no charge to join Rantburg as a member.

Posted by ryuge 2008-03-08 04:42|| || Front Page|| [6 views ] Top

#1 U.S. District Judge Susan Illston of San Francisco said that she found much of the organization's position to be persuasive

Surprise, surprise.

Posted by g(r)omgoru 2008-03-08 06:09|| 2008-03-08 06:09|| Front Page Top

#2 Agreed. Reading U.S. District Judge Susan Illston of San Francisco tells you this will get tossed out.
Too bad, I believe it's a simple and documented fact that CAIR is the mouthpeice of international terror.

Posted by JerseyMike 2008-03-08 07:29|| 2008-03-08 07:29|| Front Page Top

#3 This Burke and anyone like him who represnets these thugs needs to be drummed out of the lawdog corps. He deserves harassment and banishmnet from further employment.

Posted by Rupert Chaimp5657 2008-03-08 07:56|| 2008-03-08 07:56|| Front Page Top

#4 The judge is bought by CAIR. Most liberal judges are bought by their special interest masters. They need to be accountable to the people, but instead they are black robed tyrants instead.

Posted by DarthVader">DarthVader 2008-03-08 08:20|| 2008-03-08 08:20|| Front Page Top

#5 U.S. District Judge Susan Illston of San Francisco was nominated by President Bill Clinton on January 23, 1995.

Why am I not surprised?

Posted by Anonymoose 2008-03-08 08:37|| 2008-03-08 08:37|| Front Page Top

#6 I'm sure Mr. Horowitz will appeal... or file a new suit for each actionable action by CAIR. Surely CAIR has done more than one wrong thing in the past year or so?

Posted by trailing wife ">trailing wife 2008-03-08 08:55|| 2008-03-08 08:55|| Front Page Top

#7 What the HELL is going on down there in that california court. New appointees Bush. Fire them all. ALL OF THEM.

Posted by newc">newc 2008-03-08 09:24|| 2008-03-08 09:24|| Front Page Top

#8 Can someone tell me why, on the merits of the case, the judge's ruling is incorrect? How can quoting Whiner for 4 minutes from a 3 hour show be at once a copyright violation and at the same time be quoting him out of context? While I'd love to see somebody stick a RICO conviction on CAIR, I'm not sure Whiner is the guy to make it happen.

Posted by Nimble Spemble 2008-03-08 10:19|| 2008-03-08 10:19|| Front Page Top

#9 Numerous companies have withdrawn their advertising from his program, the group said, including Sears, AT&T and Wal-Mart
let's boycott these businesses, although I won't shop at Walmart anyway.

At a hearing Friday, U.S. District Judge Susan Illston of San Francisco
ahhhh, now it's making sense

The group called his claims about its activities preposterous, denied any connection to terrorism
I'd like to see an accounting of who gives money to CAIR. Also how the money is spent.

Posted by Jan 2008-03-08 11:03|| 2008-03-08 11:03|| Front Page Top

#10 Check out the law school the judge and the CAIR lawyer attended....inherent philosophical differences are at the root of these cases.

Posted by Thealing Borgia6122 2008-03-08 11:23|| 2008-03-08 11:23|| Front Page Top

#11 For an example of cultural differences in interpreting law:
http://news.bbc.co.uk/2/hi/europe/7284134.stm

Posted by Thealing Borgia6122 2008-03-08 11:50|| 2008-03-08 11:50|| Front Page Top

#12 I'd like Rantburg to be able to post, comment on, and expose videos by CAIR and similar groups without fearing copywright infringement lawsuits.

Posted by Eric Jablow">Eric Jablow 2008-03-08 13:20|| 2008-03-08 13:20|| Front Page Top

#13 NS - The judge is in error for the following reasons:

CAIR's unauthorized use of even four minutes of a three hour broadcast is unquestionably an act of copyright infringement. However CAIR has asserted a fair use defense to their infringement. Note that fair use is a defense to an infringement already committed not a doctrine that in certain areas or circumstances nullifies the concept of infringement itself (as many seem to believe).

The application of the Fair Use Doctrine requires the trier of fact (normally the jury in a jury trial) to consider certain factual issues and perform a multi-factor balancing test based thereon in order to determine whether the defendant's use of the copyrighted material falls within the bounds of the doctrine. The most important of these factors is the commercial nature of the use. The commercial or non-commercial nature of the use, while not dispositive, is typically more important than all other factors combined, at least in practice if not in the verbiage of the case law.

Had CAIR merely used clips from Savage's show in the normal course of their commentary without attempting to solicit donations explicitly based thereon there's little question that Savage's suit would fail. However given CAIR's seemingly at least quasi-commercial use of the clips (viz. to solicit donations) there seems to be present a very genuine issue of material fact that must be considered in light of the Fair Use Doctrine's balancing test. But it is critical to remember that in either case it falls to the trier of fact to determine the nature and extent of the defendant's infringement and to answer certain factual questions surrounding same. The disputed facts must be found by the trier if fact, it is improper for a judge to assume them away in a pretrial hearing.

The judge can properly dismiss the case only if there is no genuine issue of material fact. I've not read the pleadings but Burke's citation of Falwell combined with the judge's inclination to dismiss Savage's petition suggests to me that CAIR is attempting a sleight-of-hand: admitting commercial use so that there appears to be no genuine issue of material fact then citing Falwell as precedent to support their motion to dismiss. Since the commercial nature of the use is the most critical element of CAIR's defense, were they not in agreement with Savage there would be a material fact at issue and dismissal would be entirely improper.

However Falwell should not support a dismissal of Savage's petition because the nature of the Fair Use Doctrine requires factual findings not properly made by a judge during pretrial motions. The law hasn't changed since Falwell but the facts of the present matter necessarily differ from Falwell and therefore require an independent analysis by the trier of fact.

That said the copyright issue is almost certainly a loser for Savage. He'd have better luck with an intentional tort claim though I doubt he'd win that one either. It would, however, be quite ironic if Savage were denied his day in court since brining these sorts of weak-sauce suits in an attempt to spend their adversaries into submission is precisely the sort of tactic often employed by CAIR and their felow travellers in their quests to silence their critics.

Posted by AzCat 2008-03-08 14:45|| 2008-03-08 14:45|| Front Page Top

#14 I love the internet. Better reporting on rantburg than you will find anywhere else.

Posted by Woodrow Slusorong7967 2008-03-08 15:05|| 2008-03-08 15:05|| Front Page Top

#15 Savage I do not particularly care for - he's a bit like Coulter : sometimes right but often times an idiot and far over the line.

Posted by OldSpook 2008-03-08 15:11|| 2008-03-08 15:11|| Front Page Top

#16 Ha Ha! Mr. Savage meets cause 'n' effect. Brilliant! Bravo Judge Susan Illston!!!

Posted by Chong Stalin5069 2008-03-08 16:02|| 2008-03-08 16:02|| Front Page Top

#17 Never start a public argument with a guy who owns the microphone. This suit will be good for months of on air CAIR bashing. Do refile, do discovery, make it public on the airwaves.

Posted by ed 2008-03-08 17:25|| 2008-03-08 17:25|| Front Page Top

#18 Thanks, AzCat.

Posted by Nimble Spemble 2008-03-08 17:35|| 2008-03-08 17:35|| Front Page Top

#19 Good analysis, AzCat. Thanks for providing it.

Posted by Pancho Elmeck8414 2008-03-08 18:03|| 2008-03-08 18:03|| Front Page Top

#20 Actually I suspect today's Mod is a whiner.

Posted by Icerigger 2008-03-08 18:51|| 2008-03-08 18:51|| Front Page Top

#21 Which one, Icerigger? Pappy, Seafarious, Steve White and I have all been here today.

Posted by lotp 2008-03-08 19:05|| 2008-03-08 19:05|| Front Page Top

#22 Excellent post AzCat. It answered all the questions that the article raised in my mind. Thanks for taking the time.

Posted by ryuge 2008-03-08 23:38|| 2008-03-08 23:38|| Front Page Top

23:38 ryuge
23:16 gromky
23:00 ed
22:37 Cyber Sarge
22:05 ed
22:04 Nimble Spemble
22:03 Nimble Spemble
21:39 OldSpook
21:35 OldSpook
21:33 3dc
21:31 Lemuel Jetle9452
21:14 regular joe
21:00 newc
20:48 Chong Stalin5069
20:47 newc
20:42 Icrigger
20:19 Frank G
20:17 Frank G
20:09 newc
20:04 gromky
20:04 ed
19:50 ed
19:49 Chong Stalin5069
19:48 Mike