4/11: I had previously (3/27) drafted a brief commentary on Expelled‘s use of copyrighted material. Then, I unposted it while I checked on something, to try to make it more complete. I hadn’t gotten back to it, when the other shoe dropped: One of the copyright holders’ whose material was used in Expelled
wrote a published a draft cease & desist letter to the filmmakers. So, I’m re-posting my original comment, even though I haven’t yet had a chance to figure out the licensing status of the animations in question, and I’m doing a more detailed analysis below of the current set of claims. Consider this a rough draft of an analysis.
In part, I’m rushing this out because there are a few misconceptions about copyright and fair use on the Pharyngula blog comment thread. I’ll have to come back & add in the relevant cites when I’ve got a bit more time (probably not before Sunday), and I may have more considered analysis at that point. Right now, this is my quick first impressions on the merits of the claims that XVIVO is making, and the merits of the likely defenses that Expelled could raise.
I’ve gotta say, I’m rarely so personally sympathetic with a cease and desist as I am with this one, a letter from Peter Irons on behalf of XVIVO to the makers of Expelled, for using without permission a biology animation that XVIVO did.
The misuse of science is not the same thing as the misuse of intellectual property, and I have, unfortunately, a number of problems with this cease & desist letter. My problems are more tactical and, of course, from the perspective of a fair use / information policy attorney. But I’ll go through a bit of legal analysis first, because there are some interesting questions. If you don’t find details of copyright interesting, skip to the last 3 paragraphs.