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Good morning, y'all. I've got time to get into the #SilentSham copyright issue a little earlier than I expected.

By way of background, this is the "settlement" that the University of North Carolina system entered into with the Sons of Confederate Veterans.
For those of you who aren't familiar with this "dispute," the Sons of Confederate Veterans cut a deal with the University where they get 2.5 million to feed and care for a displaced monument to long-dead traitors, while the university gets to pay them 2.5 million for nothing.
Sadly, I'm not kidding. As you'll see, it's clear to everyone involved - including @NCDivisionSCV - that the threatened lawsuit was doomed to abject and humiliating failure (much like the Confederacy itself).
@NCDivisionSCV We know this because an email that @NCDivisionSCV sent to its members trumpeting its victory in this case leaked to @greg_doucette - who posted it.

Team Treasonweasels didn't like that - so much, in fact, that they filed a DMCA takedown.

@NCDivisionSCV @greg_doucette Like many people, I now have access to a copy of that letter. Let's run through the letter, which demonstrates just how disgraceful the conduct of both the participation trophy fetishists and the university was, and then look at why I - like Greg - have every right to post it.
@NCDivisionSCV @greg_doucette Let's start with the letter, which starts on a classic note:

"Men of the North Carolina Division:"

I was going to go somewhere with that opening, but my talent pales in comparison to so many of you, so have at it.
@NCDivisionSCV @greg_doucette The letter starts on a strong note, telling us exactly what their goals were - and, thanks entirely to the shameless, racist enablers on the Board of Governors, it's pretty clear that they succeeded in meeting those goals.
@NCDivisionSCV @greg_doucette It appears that they knew from the start that they had no hope of winning a lawsuit. Everyone told them so - and it was crystal clear that this was correct.
@NCDivisionSCV @greg_doucette If they filed, they would have lost and lost big. (Which, IMO, they should have embraced as a form of reenactment.)

Also, if they were consulting with sitting judges and not just retired ones, there are issues there, what with their intent being to find a way to sue and all.
@NCDivisionSCV @greg_doucette So, you might wonder, if everyone knew they would lose, how did they win? It seems that the functional racists of the Board of Governors came to them looking to settle a suit that didn't exist and would fail almost immediately upon filing.
@NCDivisionSCV @greg_doucette And - to be very clear - if you deliberately do things that enable racists, particularly at the expense of those who are not, you are a functional racist. Full stop.
@NCDivisionSCV @greg_doucette So the Sons of Confederate Veterans decided to try and get the law changed. This they had every right to do.

But, with unerring historical accuracy, they failed.
@NCDivisionSCV @greg_doucette "My Dearest Abagail,

We are despondent. The forces of the rule of law mercilessly beset us from every side..."
@NCDivisionSCV @greg_doucette To be clear:

The filing of such a suit would have been sanctionable misconduct on the part of the attorney. This, of course, is entirely consistent with the SCV's understanding of "honorable."
@NCDivisionSCV @greg_doucette The Board of Governors couldn't successfully find the funds to keep a civil rights center or a poverty center open.

@NCDivisionSCV @greg_doucette They cannot fund the HBCUs in the system, or the historically Native American school.

@NCDivisionSCV @greg_doucette But they can almost immediately find a cool $2.5 mil floating around that they can give to the SCV so that the SCV can *checks notes*
build a Sons of Traitors clubhouse and white sheet laundromat.
@NCDivisionSCV @greg_doucette Also - you very nearly have to respect the spectacularly shameless greed dripping from that last bit. They're going to build a "small museum" for the public, and a "comprehensive headquarters" for themselves.
@NCDivisionSCV @greg_doucette The Board of Governors needs to resign en-masse. But they lack the shame or self-respect of a dog licking itself in public, so they won't.

Again, this is money being taken from students and used to fund a playhouse for racists who are devoted to memorializing treason.
@NCDivisionSCV @greg_doucette If you're planning to start with me about whether the Confederates were traitors, go read Article III, Section 3, Clause 1 of the United States Constitution, then sit down and shut up.
@NCDivisionSCV @greg_doucette We're continuing to memorialize the utter shamelessness of the SCV and Board of Governors - this is a special case where the University is "working with" the participation trophy fetishists - in ways that won't hurt them in the future.
@NCDivisionSCV @greg_doucette And, of course, the SCV Wizard, or whatever the "Divisional Commander" calls himself, is taking this opportunity to share more with the membership than with the press.

@NCDivisionSCV @greg_doucette Way to hand a pack of treasonlovers and racists a victory, UNC. Heckofa job.
@NCDivisionSCV @greg_doucette Of course, the whole new clubhouse thing seems to be a bit of an issue, what with the wording of the settlement, but no problem. If @NCDivisionSCV could squirm past standing, they'll undoubtedly find a way around this.

@NCDivisionSCV @greg_doucette And that - give or take a little bit more self-congratulations - wraps up the letter.
@NCDivisionSCV @greg_doucette Now let's talk about fair use.
@NCDivisionSCV @greg_doucette We need to talk about fair use because the Treasonweasel Appreciation Society has decided to try and leverage copyright in an effort to keep the thing I was just discussing out of the public eye.

@NCDivisionSCV @greg_doucette We're going to talk about fair use despite the fact that there's a second doctrine, copyright misuse, that could also apply in this case. Copyright misuse is a defense that can sometimes be asserted when the monopoly you get with copyright is asserted for non-copyright purposes.
@NCDivisionSCV @greg_doucette Here, copyright is being asserted to try to suppress the discussion of the "settlement" of the "lawsuit" - a conversation on a matter of clear public interest. (In other words, @greg_doucette is the victim of a DMCA-SLAPP.) That isn't consistent with the intent of copyright,
@NCDivisionSCV @greg_doucette which is to stimulate the production of more works. So it's possible that copyright misuse would apply. But courts generally seem to prefer fair use in cases like this, so we'll take that approach instead.
@NCDivisionSCV @greg_doucette Here's the statute that covers fair use. There are also a couple of cases that are relevant, which I'll get to in a bit.
@NCDivisionSCV @greg_doucette The first factor involves the purpose of our use of the letter. Here, we're using it not for the form of the expression that it contains, but for the informational content.

Judge Pierre Leval, who has had an exceptional amount of influence on the development of fair use...
@NCDivisionSCV @greg_doucette ...provides some insight here:

"By registering a copyright, public figures who are the expected focus of public interest could use this supposed commercial protection as an aggressive weapon to prevent the publication of embarrassing revelations and to obstruct criticism.
@NCDivisionSCV @greg_doucette "It is not a satisfactory answer that the world remains free to use the facts and ideas contained in their writings. Often it is the *words used* by the public figure...that are the facts calling for comment."

New Era Pubs v Henry Holt, 695 F. Supp 1493, 1502 (SDNY 1988).
@NCDivisionSCV @greg_doucette In addition, our use is not for any commercial purpose, doesn't exploit the material without paying the customary price, is (mostly) indifferent to the mode of expression, and is for the evidentiary value of what is in the document.

See Bond v Blum, 317 F3d 385 (4th Cir 2003)
@NCDivisionSCV @greg_doucette So even though the use isn't particularly transformative, it's still well within the realm of uses that are favored under Factor 1. Factor 2 also favors fair use - the email isn't the kind of creative work that copyright is there to incentivize.
@NCDivisionSCV @greg_doucette The third factor isn't as good for us, since we used the whole (or nearly whole) thing. But even there the use is for the facutal content, not the expressive value. The 4th Circuit found that to favor fair use in Bond (317 F3d at 396) under somewhat different circumstances.
@NCDivisionSCV @greg_doucette The 4th factor is effect on market value. As the 4th put it in Bond, favorably quoting the court below, "the effect of [defendants'] use on the potential market for value of the copyrighted work is absolutely zero." 117 F3d at 397.
@NCDivisionSCV @greg_doucette So I'm very comfortable with fair use here. I'm also very comfortable, given how blatantly obvious that the takedown was entirely an attempt to suppress speech on a matter of public interest, saying that the takedown was filed in bad faith.

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