September 22nd, 2008
Peter LaBarbera of Americans For Truth and I may disagree on pretty much everything related to sexuality but something we both share is the fact we’re activists who rely on “fair-use” to expose and analyze things in the world we find objectionable.
In a recent analysis of Folsom, LaBarbera posted a digital copy of a congratulatory letter from Mayor Newsom to Folsom organizers as a one page excerpt from Folsom’s 2008 Program Guide which he found particularly offensive and illustrated the focus of his analysis.
Folsom organizers took issue with this apparently as their attorney sent LaBarbera a cease and desist letter claiming intellectual property infringement. LaBarbera, aided by the American Family Association’s General Counsel fired back calling their bluff, citing the “fair-use” clause of copyright law.
In this case I agree with Pete. Folsom’s lawyers are full of shit.
Specifically, the letter from Mayor Newsom is not Folsom’s property, it was written by someone at the Mayor’s office and is a matter of public record in the public domain. According to the Digital Millennium Copyright Act misrepresenting ownership of intellectual property puts the person making the false-claim at risk. Per Wikipedia:
anyone who makes a false claim of infringement or false counter-notification is liable for the damages suffered by the other parties
It appears the only thing Folsom organizers have succeeded in is giving the appearance of legitimizing Mr. LaBarbera’s attacks on them by allowing him to paint himself as the victim.
I contacted Folsom organizers to see if their side of the story differed from Pete’s — our email exchange is below:
I’m a pro-gay activist and write for a website called BoxTurtleBulletin.com which tracks and monitors the religious right. Recently it came to my attention that the anti-gay group Americans For Truth is claiming your lawyers sent them a cease and desist letter relating to their use of Folsom St. Fair promotional materials. The full article is online here:
Based solely on Peter LaBarbera’s account it appears he is well within the realm of fair-use and your lawyer’s claims have no ground are designed only to intimidate him.
Before blogging on this I would appreciate your side of the story.
Thanks for your email. While AFTAH claims fair use, that doesn’t mean it is fair use. There are specific legal criteria by which fair use is gauged. And, there are actually pretty severe limits placed on the amount of a work that can be reproduced under the fair use rule. We state clearly in our Guide: “Reproduction in whole or in part without permission…is prohibited.” That said, we apparently disagree on the issue which is why we are pursuing it. There is no intimidation involved here.
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On February 10, I attended an all-day “Love Won Out” ex-gay conference in Phoenix, put on by Focus on the Family and Exodus International. In this series of reports, I talk about what I learned there: the people who go to these conferences, the things that they hear, and what this all means for them, their families and for the rest of us.
Prologue: Why I Went To “Love Won Out”
Part 1: What’s Love Got To Do With It?
Part 2: Parents Struggle With “No Exceptions”
Part 3: A Whole New Dialect
Part 4: It Depends On How The Meaning of the Word "Change" Changes
Part 5: A Candid Explanation For "Change"
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And don‘t miss our companion report, How To Write An Anti-Gay Tract In Fifteen Easy Steps.
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