April 25, 2012 Dear Station Manager, We are in receipt of Chad Nodland’s “Cease & Desist Demand” pertaining to Crossroads GPS’s

currently-airing issue advertisement. Put very simply, Mr. Nodland, who is a Democratic party operative, advances a flimsy copyright claim with the aim of suppressing public debate about the views of an individual who is currently running for U.S. Senate. Mr. Nodland is North Dakota’s Democratic National Committeeman and a liberal blogger at www.NorthDecoder.com. He claims ownership of video footage of Heidi Heitkamp speaking candidly at a public event. In the portion of that footage used by Crossroads GPS, Ms. Heitkamp states, “I think Barack Obama is going to be amazing, and I think we’re on our way to a better United States.” Mr. Nodland does not want this portion of the video to be seen by the public because he fears it may be politically damaging to Ms. Heitkamp, hence his efforts to erase all traces of it from the Internet and airwaves. As a preliminary matter, we note that YouTube’s removal of a video due to a copyright claim does not mean that anyone had made a legal determination as to the merits of that claim. At least one political campaign publicly complained to YouTube in 2008 that its materials were removed by YouTube immediately upon receipt of an overreaching or malicious copyright claim. It appears that Mr. Nodland has adopted the same abusive tactic, and that YouTube still removes material upon receipt of a “take down” notice, prior to any consideration of competing legal claims and rights. We note that the actions of YouTube are of no legal significance. Assuming arguendo that Mr. Nodland could have a valid copyright in and to the video in question, Crossroads GPS’s use of that video is very plainly protected by the fair use doctrine. The fair use doctrine “confers a privilege to use copyrighted material in a reasonable manner without the owner's consent.” Belmore v. City Pages, 880 F. Supp. 673, 676 (D. Minn. 1995) (emphasis added). Mr. Nodland’s cursory review of the fair use doctrine could be generously described as incomplete. A fuller review of the law – which does not apply categorically, as Mr. Nodland suggests, but is actually a multi-factor balancing test – makes clear that the fair use doctrine is applicable in this case.

Each of the several factors that are considered in a “fair use” case weigh in favor of Crossroads GPS’s limited use of the video in question. 1. Crossroads GPS’s use of the video is for a nonprofit, transformative, political purpose. In a fair use case, courts consider whether the use constitutes criticism, comment, news reporting, teaching, scholarship, or research. “[T]here is a strong presumption that factor one favors the defendant if the allegedly infringing work fits the description of uses described in [the copyright law].” Wright v. Warner Books, Inc., 953 F.2d 731, 736 (2d Cir. 1991). A noncommercial use, such as Crossroads GPS’s political use here, is favored over a commercial use, for fair use purposes. Furthermore, Crossroads GPS’s use of the video clip is “transformative,” i.e., it “adds something new, with a further purpose of different character, altering the first with new expression, meaning, or message.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). Specifically, the Crossroads GPS issue advertisement asks Ms. Heitkamp to defend her stated position that “Barack Obama is going to be amazing, and … we’re on our way to a better United States.” The Crossroads GPS advertisement notes that President Obama’s signature accomplishment, Obamacare, costs $1 trillion, cuts $500 billion in Medicare spending, and gives unelected bureaucrats the power to restrict seniors’ health care options. Crossroads GPS asks viewers to “Tell Heidi: Obamacare is not the way to a better United States. Support the repeal of Obamacare.” The advertisement contrasts Mr. Heitkamp’s prediction about Barack Obama and his effect on the United States with the reality of his signature legislative accomplishment. In addition, the fair use doctrine applies more broadly and with greater force in the political context. As one court explained, “[t]he scope of the [fair use] doctrine is undoubtedly wider when the information conveyed relates to matters of high public concern.” Consumers Union of U.S., Inc. v. General Signal Corp., 724 F.2d 1044, 1050 (2d Cir. 1983). Finally, political uses of copyrighted material also implicate First Amendment concerns: “The use by the defendant of a portion of the plaintiff's political advertisement is clearly part of a political campaign message, noncommercial in nature, and First Amendment issues of freedom of expression in a political campaign are clearly implicated.” Keep Thomson Governor Committee v. Citizens for Gallen Committee, 457 F. Supp. 957, 961 (D.N.H. 1978). 2. Mr. Nodland’s video work is of a factual, as opposed to fictional, nature.

Courts have held that the public’s interest in factual works is greater than in works of fiction. Accordingly, factual works, published speeches, news broadcasts, and bare factual

compilations are entitled to less copyright protection than creative works such as short stories, memoirs, and motion pictures. See Campbell, 510 U.S. at 586. 3. limited. The portion of Mr. Nodland’s work that is used is small and appropriately

The portion of Mr. Nodland’s work that is used in the Crossroads GPS advertisement is limited to the amount needed to comment, criticize, and publicize the contents of that work. Crossroads GPS did not engage in any unnecessary or gratuitous copying. Rather, the use was entirely “reasonable in relation to the purpose of the copying.” Campbell, 510 U.S. at 586. As the Ninth Circuit Court of Appeals explained, it is generally permissible to copy as much as is “reasonably necessary to make an understandable comment.” Hustler Magazine, Inc. v. Moral Majority, Inc., 769 F.2d 1148, 1153 (9th Cir. 1986). 4. work. Crossroads GPS’s issue advertisement is not a “market substitute” for Mr. Nodland’s video. In fact, Crossroads GPS is not “marketing” any portion of Mr. Nodland’s video at all. Mr. Nodland’s video was created on or about 2008 – he has never before attempted to “market” that video. As one court explained, this factor “is aimed at the copier who attempts to usurp the demand for the original work.” Consumers Union of United States, Inc. v. General Signal Corp., 724 F.2d 1044, 1050 (2d Cir. N.Y. 1983). Crossroads GPS has made no such attempt “to usurp the demand” for Mr. Nodland’s video, nor is that the purpose, intent or effect of Crossroads GPS’s use of the video at issue. 5. Mr. Nodland’s work was previously “published” on YouTube and other websites that are readily available to the general public at no cost. “A previously published work available to the general public will receive less protection under the fair use doctrine than an unpublished work which has not yet been released to the general public by its author.” MasterCard Int'l Inc. v. Nader 2000 Primary Comm., Inc., 2004 U.S. Dist. LEXIS 3644 (S.D.N.Y. Mar. 8, 2004). Finally, the political nature of Crossroads GPS’s issue advertisement is entitled to broad First Amendment protection. As one court explained when faced with a complaint that a political advertisement contained a portion of copyrighted music, “the exclusive right of a copyright holder must be weighed against the public's interest in dissemination of information affecting areas of universal concern.” Keep Thomson Governor Committee v. Citizens for Gallen Committee, 457 F. Supp. 957, 960 (D.N.H. 1978). Crossroads GPS’s use has no effect on the potential value of Mr. Nodland’s

Crossroads GPS’s use of a portion of the video in question is protected by both the fair use doctrine and the First Amendment. Mr. Nodland’s attempts to suppress speech about the views of one of his party’s candidate has no basis in law, and there exists no good reason for you to entertain his threats. We trust that our client’s advertisement will remain on the air as scheduled. Sincerely,

Thomas J. Josefiak Michael Bayes Counsel to Crossroads GPS

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