Last weekend, The Sunday Times, a UK newspaper, released a front-page article entitled “British Spies Betrayed to Russians and Chinese.” The article claimed that Russia and China accessed the classified files leaked by Edward Snowden. The article went on to state that UK intelligence agency MI6 was forced to remove agents from active operations in Moscow because of this leak.
The article has been the subject of journalistic criticism since its release on June 14, 2015. One of the most notable critiques was written by Glenn Greenwald for the website The Intercept, which included a thumbnail of the Sunday Times front page in its response.
In response to this, The Sunday Times also issued a DMCA takedown notice to Greenwald’s publisher, First Look Media. The notice claimed that Greenwald and the publishing company infringed on The Sunday Times’ copyright to the typographical arrangement of its front page.
The idea that this use is infringing is nonsensical because Greenwald’s actions are a quintessential example of fair use. The fair use doctrine encourages the commentary and criticism of copyrighted works by serving as a limitation to the exclusive rights granted to a copyright owner. Fair use allows third parties to use copyrighted works in particular ways without the permission of the copyright owner. For example, fair use is meant to allow the use of copyrighted works in news reporting, commentary and criticism, and education. When determining whether the use of a copyrighted work is fair, courts will consider four factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality used, (4) and the effect of the use on the potential market.
The “purpose and character” factor allows a court to look at the intentions behind the use. In this situation, Greenwald used The Sunday Times’ front page for commentary and criticism of the news report. With regard to the nature of the copyrighted work, a finding of fair use is more likely when the nature of the work being copied is more akin to a factual work, such as a news broadcast. Here, a finding of fair use is likely because the material that Greenwald copied from The Sunday Times is (notionally) factual in nature. Additionally, the portion that was included was necessary in order to identify the source of the article and emphasize its prominent placement on The Sunday Times’ front page. Finally, the use of the image is not likely to have an effect on the potential market for the copyrighted work; if anything, Greenwald’s critique will likely result in more attention to The Sunday Times.
In lieu of the glaringly apparent fair use issue, one has to wonder what The Sunday Times was hoping to accomplish with this takedown notice. Even if the legal reasoning of the notice were sound, it would only result in the takedown of the thumbnail-sized image. The only thing that the newspaper successfully achieved is to draw attention to its improper application of copyright to censor unfavorable speech.