07 November 2011

Case Western Reserve University: Proxy Censor for the U.S. Army's Human Terrain System

Regarding two of our previous articles, Anthropology at War: Human Terrain Social Science Director Admits Human Terrain Mapping is Scary, Troubling and Human Terrain Mapping at Home is "Scary": The Video the Human Terrain System Does Not Want You to See, Case Western Reserve University is acting to block copying and republication of its own deleted video, given pressure from the U.S. Army's Human Terrain System and in particular its Social Science Director, Dr. Christopher A. King. The claim is that Case Western Reserve University's School of Law by "mistake" published the video to YouTube, a "mistake" since "one of the participants" had not signed a "media release" and apparently did not want the video online. AJP has confirmed that neither of two of the three featured participants--Dr. George Lucas and Dr. David H. Price--has asked Case Western Reserve University to take down the video, and in the case of David Price, he is adamantly critical of the move. The third participant was Dr. King. (Update: Dr. King has himself confirmed that he was the one who wanted the video taken down.)

Case Western Reserve University's School of Law has since contacted AJP member, Dr. Maximilian C. Forte, demanding that the video be removed from YouTube. This came within hours of our last article going online. This demand came from Nancy M. Pratt, Associate Director at the School of Law, in an email dated November 3, 2011. 

Case Western Reserve University, by its own admission, made a "mistake" in releasing an edited video exceeding an hour (and nearly a gigabyte in size) and uploading it to YouTube, where it continued to remain for at least one week, that is, until Anthropologists for Justice and Peace publicly commented on the contents. There are in fact two "mistakes" that deserve further scrutiny.

First, Case Western Reserve University's School of Law, in emails to both Drs. Price and Forte, claimed that two of three participants on the panel in question had signed "media release forms" and a third did not. Case Western somehow managed to make its mistake right through a process that took a lot of work and time, such as that which went into recording, editing, and uploading the video, all work that was undertaken while supposedly losing sight of a lack of "permission" to do so. Indeed, even the objecting participant spoke without any sign of being perturbed as he was being recorded without any protest on his part (and there appear to have been at least two cameras in operation, filming from different angles). There was apparently no recognition of any mistake at all, until AJP decided to comment on the video.

Case Western Reserve University's School of Law decided to act once its video had already been seen, and once it had already been the subject of commentary, which makes the move as pointless as it is a malevolent attempt to "cleanse" the public record, which is thus also a restriction on freedom of speech and freedom to publish.

However, even if we take Case Western Reserve's assertion at face value, the fact remains that it is its mistake, not ours. It is a mistake that cannot be remedied, as the video has already been seen by numerous persons, copied, and commented upon by numerous persons--and that cannot be reversed. It is a mistake for which they can only apologize (not that they should, more on this below) to the party that feels wronged, and the matter is entirely between them. That the video was untintentionally "leaked" to the Internet is not our problem.

The second mistake made by Case Western Reserve University is to assume that a "media release" is some legal rule of ultimate and absolute value that outweighs all else, and can be used as a gag order against the entire public. Participants in the conference all knew they would be speaking at a public event. Their words are intended for the record. Moreover, a media release form should not act as an unfair restriction on free speech, and the freedom to publish. It is especially disconcerting that a University would undertake the role of censor, against academics, regarding a public event, and in the context of a conference that it chose to host that dealt precisely with the restrictions placed on universities by the national security state.

Case Western Reserve University's School of Law has decided to privilege the interests of one person against those of the public good, in an attempt to cover up what was said and to remove the physical evidence of the utterance. It is entirely dishonest and worthy of contempt: it amounts to telling all of us that because one person could not take care with what he was saying, the rest of us should not be allowed to speak about it (and in speaking about it, we refer to the physical evidence in question, of course, that dealing with the speech act itself).

Case Western Reserve University's School of Law has also advanced its demand on the grounds of copyright. In this it is seeking to take advantage of the fact that YouTube only rarely, in practice, ever recognizes the legally established right of Fair Use, with which a School of Law would presumably be familiar. Let us look at what the law actually provides:
U.S. Copyright Law Title 17 § 107.
Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Therefore, the fact that Case Western Reserve University's School of Law has withdrawn the video, rendering it "unpublished" does not bar us from using it under Fair Use provisions. Our doing so does not infringe on any market value of the work; it is used for nonprofit educational purposes; and, it is used for criticism, comment, news reporting, scholarship and research.

However, Case Western Reserve University's School of Law could argue that by republishing the entire video, rather than just a portion (which we also intend to do), that we are exceeding what Fair Use allows. Yet, by its own admission, two of the three participants agree with such publication, and therefore the real element in question is a third, dealing solely with the portion featuring Christopher King's presentation. It is absolutely wrong for the School of Law to equally banish publication of the presentations by Drs. Price and Lucas, when they specifically approved such publication.

What is especially troubling, however, is that Case Western Reserve University's School of Law is acting against academics and the wider public as a proxy censor for the U.S. Army, using whatever argument is conveniently at hand. Please remember that Dr. Christopher A. King is a government official, performing in his public capacities as a representative of the U.S. Army's Human Terrain System, at an event which Case Western Reserve University's School of Law confirmed in its email to Dr. Forte was a public event. Being a public event, and Dr. King being a public official, performing in an official capacity, it is therefore the case that no expectation of either confidentiality or privacy can be attached to his utterances. Even the very PowerPoint slides shown by Dr. King are all marked with the label: "UNCLASSIFIED" without any qualification (such as "Not for Distribution")--there is your "media release". Not even a mountain of signed or unsigned media releases, however, can change the fact that we are free to publish his statements, without impediment.

Case Western Reserve University should avoid further embarrassing itself by pursuing unjust claims, for the wrong reasons, against the wrong people, purely for the sake of the impossibly retroactive and chillingly Orwellian image management effort of one party, a party that apparently lacks the maturity and intelligence to give a full public account of what was said, and why. We will continue to exercise the right to speak freely and to publish freely.

This should not have been an act of resistance; it should have been a routine performance of what all universities are supposed to value and respect, first and foremost.
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