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"The law simply does not permit a claimant to stifle political speech under the banner of copyright infringement. To the contrary, the fair use doctrine exists precisely to prevent the co-opting of copyright to prevent speech on matters of public concern," the lawyers write.
In addition to documenting the fact that the political action committee of News Corporation, the parent company of Fox News, has contributed $9,500 to the campaign committees of Sen. Roy Blunt (R-MO) since 2002, including $2,500 to Blunt's 2010 Senate campaign, they are also pointing out what they claim is a Fox News double standard in enforcing its copyrights.
Carnahan's lawyers argued that Fox News footage appeared on Blunt's campaign website during the 2010 midterm election cycle, but Fox News has taken no action. They also pointed to a 4 minute, 56 second audio clip from the Sean Hannity radio show.
The campaign of Sen. John McCain (R-AZ) posted a 12 minute 16 second clip of his interview on Fox News on the candidate's 2010 YouTube account; while a 9 minute 54 second clip of an interview with David Vitter by Chris Wallace that appeared on the candidate's website in 2010, Carnahan lawyers argue.
A 5 minute 55 second video clip of a Fox News interview with Rand Paul was posted on the campaign website of Senator-elect Rand Paul (R-KY) during the 2010 campaign, the Carnahan campaign also pointed out in a filing.
Fox News sought a default judgement in the case. Copyright experts previously told TPM that Fox News' decision to sue the campaign was a dramatic step. Fox News was "attempting to use intellectual property and Missouri tort laws to stifle core political speech in the heat of this election season," a lawyer for Carnahan previously said.
A spokeswoman for Fox News did not immediately respond to a request for comment. When the suit was first filed, Fox News senior vice president of legal and business affairs Chris Silvestri said the network took the action because they "cannot allow it to appear as though Chris Wallace is endorsing any candidate."
Lawyers Mark Sableman, Michael L. Nepple, Sharon B. Rosenberg, Matthew A. Braunel, Marc E. Elias and Ezra W. Reese filed the motion on behalf of the Carnahan campaign.