Last week, the Conservative party posted an offensive advertisement on YouTube and Facebook titled Justin Trudeau on ISIS. The ad starts with ISIS music and images of prisoners about be drowned or beheaded before running short edited clips from a 13 minute interview with Trudeau and the CBC’s Terry Milewski. The advertisement has rightly generated a backlash with questions about whether it violates Bill C-51’s prohibitions on terrorist propaganda. Conservative Party campaign spokesman Kory Teneycke argues that it is little different than newscasts involving ISIS, but watching the combination of music and imagery, it clearly goes well beyond conventional news reporting on ISIS. Indeed, even if it fall short of violating Bill C-51, the ad is in terrible taste, treating images of victims as mere props for political gain.
Beyond the C-51 issue, the CBC waded into the issue late on Friday, as Jennifer McGuire, the CBC News Editor-in-Chief, posted a blog indicating that the broadcaster has asked YouTube and Facebook to take down the ad. The ostensible reason? Copyright. The CBC has again raised the issue of re-use of news coverage in political advertising, claiming that it is determined to limit re-use since “our integrity as providers of serious, independent coverage of political parties and governments rests on this.” In light of this position, the CBC says its guiding principle is:
No one – no individual candidate or political party, and no government, corporation or NGO – may re-use our creative and copyrighted property without our permission. This includes our brands, our talent and our content.
The CBC is simply wrong. Its guiding principle is wrong and its attempt to use copyright to take down an offensive advertisement is wrong. The claim brings to mind the story from last fall involving a government proposal (that was shelved) to create a specific copyright exception for the use of news content in political advertising.
I argued then that no exception was needed because copyright already provides latitude for political parties to use works without permission. That is because copyright does not provide the absolute rights suggested by the CBC. The CBC obviously has rights as the copyright owner in its broadcast, but those rights are constrained by limitations and exceptions under the law that allow for use of its work without the need for further permission. The CBC itself (like all broadcasters) regularly relies upon those exceptions to use the work of others without permission. Similarly, I just used the exceptions to quote the CBC policy in this blog post without their permission.
In this case, there are several arguments that the use is permitted under the Copyright Act. First, the clips run for about 22 seconds out of a 13 minute interview. As the Copyright Board of Canada discussed in a recent decision, an infringement claim only arises where the copying involves a substantial part of the work. By implication, an insubstantial amount does not give rise to a copyright claim. The Copyright Board ruled that 2.5% of a written work was insubstantial. In this case, the total of 22 seconds are about 2.8% of the total interview. There is a plausible argument that the clips involved are insubstantial and do not even trigger a copyright claim.
Second, in the event that the clips are viewed as a substantial part of the work, there are exceptions that may apply. The most important is fair dealing, which is the Canadian equivalent of fair use. Fair dealing involves a two-step test. The first is whether the dealing or use is for an appropriate purpose. This requires one of the purposes in the Act: research, private study, news reporting, criticism, review, education, parody, or satire. In this case, criticism, research (on Trudeau’s political positions), or even news reporting (of those positions) might apply. The second part of the test involves an examination of six factors: the purpose or goal of the dealing, the character, the amount copied, alternatives, the nature of the dealing, the its effect (which often involves consideration of the economic impact). Given the qualifying purpose, the limited amount copied, the lack of alternatives, and the limited economic effect, there is a strong fair dealing argument here.
In fact, there are other exceptions that might also apply, including the new non-commercial user generated content provision that is explicitly designed to allow for the use of copyrighted works to create new works for non-commercial purposes. The UGC provision is available to individuals (which might preclude its use by the Conservative party), though there is an argument that the four criteria can be met and the person who created the video can rely on the exception.
The CBC could raise some interesting moral rights arguments to counter the exceptions (if their employees have not waived their moral rights). However, the larger point is that its claim that no one can use any clips of its broadcasts without permission is inconsistent with the state of the law. There is much to criticize about the Conservatives’ ISIS ad, but copyright isn’t one of them.
I’m with you on most issues, but you have completely missed the mark on this one. CBC — and the other broadcasters noted in the blog post — are arguing performance rights, not copyright per se. Performance rights are why the IOC can prevent unlicensed broadcasters from showing highlights of the Olympics, as they choose not to participate in the broad licensing deals that most networks and cable sports stations participate in. Even on the copyright issue, the most recent Supreme Court rulings were related to printed works (including digital equivalents). At the very least, the copyright issue for video, music, films, and other such works where performance rights are inherent, has not yet been tested in court.
Performance rights are copyrights. Section 15 of the Act, which grants performance rights states that “Subject to subsection (2), a performer has a copyright in the performer’s performance…”.
Also, the most recent Supreme Court rulings were not limited to printed works. The most on point case would be SOCAN v. Bell Canada, which was about whether the distribution of 30 second excerpts of musical works was copyright infringement, or whether it was permissible under the fair dealing exception because it supported consumer’s research into music they might like to buy. The Court found that the dealing was fair.
Only a concern for the CBC because it makes Trudeau look bad!
The CBC’s issue is unrelated to Trudeau himself. It more likely that they object to very selective mid-sentence excerpts from a long thorough interview being used for partisan purposes, making respected journalists like Terry Milewski look unprepared and unprofessional. Trudeau did say that under his leadership Canada would stop bombing ISIS but immediately went on to explain that there are other effective roles Canada’s military could play in the international effort against ISIS. By excerpting just a few words of his answer to Terry’s question, the CPC ad clearly implies that Trudeau wants do nothing, even suggesting that he supports ISIS.
I suspect that the CBC would not be objecting if the full interview was used verbatim in that CPC ad (especially as the CBC News is onscreen throughout that PnP interview.)
So the tax-payer funded CBC is claiming ownership over a taxpayer-funded interview and will no doubt be paying lawyers with taxpayer money …
Can we please privatize this self-righteous cesspool of liberal-left abuse and contempt? It”s time the CBC grows up and joins the real world.
This is not just a “liberal-left” concern. CBC and the fully commercial corporate TV networks (CTV, Global, etc) united last year and made a joint statement objecting to the unauthorized use of their news reports and broadcasts in political ads.
Aaah, yes …. the “consortium” …..!
Give your knee-jerk CBC bashing a break, Dave.
CBC is simply doing its job… protecting its copyrighted material.
Nobody in their right minds would ever believe it doesn’t have the right to protect its interests because it is publicly-funding.
And if it has to pay lawyers to prevent any party from using and distorting its material to lie to Canadians…
then I say it is a darn good use of taxpayer money.
“Liberal left”? The ownership of copyright and intellectual property is traditionally a conservative value! In the “real world” conservative companies are fighting daily to extend copyright, to extend patents, and to extend trade-mark usage.
CBC should show the comparisons, because this commercial is the equivalent of those movie ads that say “A Terrific…. Movie!” when the original quote was “A Terrific idea that turned into a terrible movie!”
In the last few years I myself have noticed “one-sided” reporting that clearly places blame on one side of an argument. I agree that the CBC is extremely afraid of offending immigrants, aboriginals and criminals based on the incomplete reporting that leaves me asking more questions than are answered. I wish that if the CBC continues to report they will do this in the professional manner that a true journalist will expect.
Don’t understand why a publicly funding broadcaster (or any broadcaster for that matter) would be acting like this. This has to trace back to protection of the Liberal party. Stephane Dion raised this back in 2013:
This is a clear violation of the competition act as well.
Someone has to put a stop to this. We’re headed into an election! Everyone should be playing by the rules! We need a fair election this go around, and it’s quite clear after Del Mastero, the courts intended to send that message! Do we need to put Mansbridge in leg irons as well to send this message to media?
Interesting you blame the Liberals, then mention Del Mastro… because it is only the CONSERVATIVE party that has been actually caught breaking the rules… again and again… and again…
No I’m not blaming the Liberals, the evidence just points to them:
I agree with Anthony Reimer and DPChurch.
Michael Geist, you’ve missed McGuire’s point almost entirely. The issue she raises isn’t about copyright. It’s almost an afterthought at the end of her note. Her note mostly raises the issue of misrepresenting an interview out of context, snipping out only the bits to represent a message that wasn’t actually present in the interview: that Trudeau basically wants to surrender to ISIS instead of simply stop the bombing campaign and instead focus on training local armies to combat the enemy itself. The Tory ad uses CBC staff and distorts its content as a tool to attack a political opponent. That undermines the very essence of the CBC to be a fair broadcaster. It has the right to demand its content not be misrepresented in this way.
You’ve laid out a decent argument about copyright. You should’ve spent your time justifying how distorting the content of an interview for private partisan ends is somehow justified. Now don’t be surprised if the Tories now use your name as someone who supports their ad with lines like “Michael Geist even supports our ad against Trudeau, and he’s the copyright fairness guy so it must be okay.”
“We have exemptions in copyright law for a reason, and that is too ensure that free speech isn’t controlled by anyone. Last week, Ontario Court of Justice Judge Lisa Cameron made it very clear in Del Mastro’s case that the courts would not accept deceitful behavior from politicians calling it “an affront to the principles of our democratic system”. Similarly the CBC’s attack on free speech under the guise of “journalistic” principles months before an election, should be treated also as an affront to the principles of our democratic system by Canadians as well. I highly doubt that with the message Justice Cameron sent last week, that media companies will be treated any differently by the courts if the consortium is legally challenged on this issue.”
What you say about how the Conservative ad uses only the parts they choose is correct. I, unfortunately see the same thing happening with the CBC reporting where they show us only what they want us to see. This is not what reporting is all about. Reporting is based on facts and not biased beliefs. In the past few years I feel that I cannot trust anything the CBC publishes or reports. It’s a shame.
Del Mastro broke elections laws.
CBC is simply trying to prevent its copyrighted material to be used with permission. If anyone has broken the law here, it is not CBC but the CPC.
Funny, you say you want ‘fair elections’ and yet you seem to take no issue with a political party deliberately distorting media content to misrepresent another leader’s position and gain political points.
I agree with what you are saying. My concern is with the CBC distorting media reports in general that misrepresent the issues by omitting very important and significant information that can help the general public form their own opinions. The CBC has been forcing their own opinions on the public with one-sided reporting.
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There’s also the question of whether they have permission from ISIS to use their music and images.
ok, that made me LOL.
Are there not cases where the content owner can require certain provisions when its content is used ? (for instance, that attribution be made, content not modified, that content’s onwer’s logo be present etc) ?
Or would such provision imply that the content owner has copyright , which Mr Geist argues is not the case for news clip ?
Also, would a long interview be considered “news”. This is not like a news report of a car accident on the corner of Nicholas and Laurier. If the same interview is aired on “The National” versus say “The 5th estate”, would it be considered “news” in either case or only if aired during a news program ?
I very much disagree JF with the notion that media should be controlling any messaging like this during the election. The ad is distasteful, but fair use laws also allow CBC to essentially cut the ad up into pieces and add their own commentary of it. NOTHING should be pulled offline. That’s boarderline tyranny.
Journalists are well aware of copyright law. I went through for broadcast journalism. One of the first things they teach you in the course is copyright law, and fair use. It’s very common, possibly thousands of times a day if not more for journalists in Canada to essentially rip stories off of competitors using fair use. It pisses the big media consortium off. The notion that attacking fair use is somehow protecting “journalistic” integrity when they know full well how copyright works, is very deceitful and intentionally misleads the Canadian public on matters of law! That’s way more of an issue towards democratic principles than what they conservatives have done with this ad. Way more serious, and has the potential to limit if not silence criticism of consortium broadcasted debates.
Even if the CBC takes these down on moral issues, what’s going to happen to content uploaded by users from the debates? Are we at a point where criticizing a political party is silenced on moral copyright issues?
Fair use has always been a sore point for copyright extremist lobbies, but without it, we don’t have a free press!
That’s a great point, but hardly applicable here. The Conservatives have re-edited an interview to create a distorted narrative during an election. As a journalist you know that the person who gets the narrative out first wins — everyone else is playing defense (that’s exactly how they slaughtered Ignatieff). The Conservatives also have the money to out-spend the other parties by FAR… so even if the Liberals mounted a defense, they could not overcome the wash of Conservative ads (they are on literally EVERY video I’ve watched this week). It may be legal (as this blog and you point out) but it ain’t fair.
@Strepsi – As a journalist and political blogger I know better than to to throw fair use aside due to political biases. That shows motive for political interference by our free press to try and influence the vote around their political ideology. By contrast Sun media tried to do this at the CRTC level a few years ago, and the same journalists complaining now came out in force to ensure our broadcast media remains free of political bias.
It is not the job of the broadcast media to control political messaging during an election. Surprisingly Trudeau agrees with this (although both him and the Greens are politically cornered now on supporting the consortium debates and it looks like this may give the political parties reason to back out.)
“Trudeau on CPC using ISIS videos in ads: says he will leave it up to Cdns if they want to elect a party that uses footage from terrorists”
This is the way it’s supposed to work. The moment we give copyright trolls like the CBC control over the political messaging online, is the moment when journalistic integrity thus a major pillar of democracy will fall by the way side.
If the CBC is concerned about journalistic integrity, they need to can Jennifer McGuire!
@Strepsi – It’s also worthy to note that Bell Media fired it’s president due to trying to influence news casts to the stations advantage.
I am pleased to hear from someone who can speak from experience. Is it frustrating for a journalist to have their work ripped apart by editors and pieced together in a manner that changes the intended meaning in order to forward their own ends. I’m not focusing on copyright laws, I’m interested in the CBC reporting facts based on the journalists information that they have gathered and researched.
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If “snippets” are considered ownership then long interviews with party leaders should be considered an election expense contribution and not be paid by the taxpayer’s CBC subsidy; and it should be docked. For the private broadcasters the election expense should be charged back to their shareholders.
Hey…. let’s call it for what it is …. political advantage and promotion ….!
FIrst, regarding the comments that the blog post merely mentions “copyright” at the end, it begins with the more specific statement that CBC has made what sounds like formal “takedown” requests of the two American services. My impression – subject to informed correction – is that such “takedown requests” to Youtube or Facebook would have been issued under the USA’s DMCA rules, not Canadian copyright law. If so, Prof Geist’s discussion of recent Canadian law, while informative would not be dispositive.
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There was much speculation, if not firm assertion, by panelists on P&P that Conservative MP Dean Del Mastro’s perp walk in shackles would feature prominently in opposition attack ads against the Conservatives. Are those pictures taken from major networks’ newscasts, as well as those of Mike Duffy entering/exiting the court house, also covered as “copyright material” that cannot be used by political parties? Or will those pictures be freely available to opposition parties because they’re deemed by CBC et al. to be “in the public interest”?
Yeah, you’re right, the ads left a bad taste in my mouth also. They are trying to say that only the Harper government can deal with ISIS. I think ISIS will be dealt with no matter what government gets elected, even the green party. Thanks
CBC should have their Government funding cut off.. over rated talking heads for the Liberal party.
Oh and if you want to see the Video in question, feel free to watch it on http://www.JustinTrudeauSucks.com
Another question to ask if displaying images of captives being executed violates article 2 of the Geneva Conventions (1929)
Yeah, go over to Iraq and file a formal complaint to ISIS
What I find interesting is the Kory says the news is not truthful and then their ad maker goes ahead and uses media clips. Facts are something this Harper party makes up on the fly and they are getting just as annoying as black flies on a summer hike.
Dear God, Jason Koblovsky give it a rest. You “went through for broadcast journalism” (whatever that means) and you claim to be a journalist. Spewing uninformed and biased opinion – even prolifically, even occasionally for a digital source like huffPo – doesn’t make you a journalist, any more than sitting in court makes me a judge.. Your twisted analysis “If we have information, if it’s true and it’s interesting and it’s legal to put it out there, we will publish,” Denton said. “We have this catchphrase, ‘Whatever We Know, Whatever We Think,’ and we try to share that as much as we can.”
preventing a political party (who’s campaign manager had the stone-cold arrogant audacity to insist the party was better than the news because it tells the truth) from distorting – YES DISTORTING – what was originally journalism, is somehow part of a conspiracy to protect the Liberal Party is nothing less than delusional. “Tyranny”? Are you completely mad? Dude, you’ve been playing too many FIrst Person Shooters in your Toronto basement. Back away from the keyboard and think before you concoct your X-files scenarios involving the CBC-LPC cabal. At its worst however, your shameless self-promotion here as some sort of expert in politics (and of the CBC for that matter), makes you appear to be a shill for the Conservative party. Whatever axe to grind you have against the public broadcaster, be a “journalist”. A journalist separates fact from opinion, conjecture and suspicion. The owners of the CBC – the people of Canada, not simply taxpayers – should be damn glad a senior manager is demanding the content they paid for – that they expect will be accurate and authentic – is off limits to editing, misrepresentation and distortion for purposes that are purely about holding on to political power. Whatever you think of the ad, the Conservative party neither paid for the content, nor asked permission to use it. And McGuire’s full position doesn’t simply say “no one can use it”. It’s “no one can use it with out permission.” As a tax payer, I’m glad my asset -my property- is being protected Despite your bloated sermons here and elsewhere about fair use, the reality is in newsrooms where ethics matter, discussions about fair use happen every single time a news agency intends to use material which it does not own. And that is when, and only when the material is arguably FOR THE PUBLIC GOOD, IN THE PUBLIC INTEREST. No such argument, even by the most rabidly partisan Conservative party operative could be made in this present case. None. By all means continue on your misguided campaign of bombast, bullshit and bias. I suspect there’s a reason why you “went in for broadcast journalism” and instead rose to the lofty heights of representing “gamers” and typing a blog most people have never heard of. Believe me, with your innate bias, lack of critical thinking and propensity for just making stuff up, I doubt any respectable news agency would have you as employee.
Dear God, Jason Koblovsky give it a rest. You “went through for broadcast journalism” (whatever that means) and you claim to be a journalist. Spewing uninformed and biased opinion – even prolifically, even occasionally for a digital source like huffPo – doesn’t make you a journalist, any more than sitting in court makes me a judge.. Your twisted analysis that preventing a political party (who’s campaign manager had the stone-cold arrogant audacity to insist the party was better than the news because it tells the truth) from distorting – YES DISTORTING – what was originally journalism, is somehow part of a conspiracy to protect the Liberal Party is nothing less than delusional. “Tyranny”? Are you completely mad? Dude, you’ve been playing too many FIrst Person Shooters in your Toronto basement. Back away from the keyboard and think before you concoct your X-files scenarios involving the CBC-LPC cabal. At its worst however, your shameless self-promotion here as some sort of expert in politics (and of the CBC for that matter), makes you appear to be a shill for the Conservative party. Whatever axe to grind you have against the public broadcaster, be a “journalist”. A journalist separates fact from opinion, conjecture and suspicion. The owners of the CBC – the people of Canada, not simply taxpayers – should be damn glad a senior manager is demanding the content they paid for – that they expect will be accurate and authentic – is off limits to editing, misrepresentation and distortion for purposes that are purely about holding on to political power. Whatever you think of the ad, the Conservative party neither paid for the content, nor asked permission to use it. And McGuire’s full position doesn’t simply say “no one can use it”. It’s “no one can use it with out permission.” As a tax payer, I’m glad my asset -my property- is being protected Despite your bloated sermons here and elsewhere about fair use, the reality is in newsrooms where ethics matter, discussions about fair use happen every single time a news agency intends to use material which it does not own. And that is when, and only when the material is arguably FOR THE PUBLIC GOOD, IN THE PUBLIC INTEREST. No such argument, even by the most rabidly partisan Conservative party operative could be made in this present case. None. By all means continue on your misguided campaign of bombast, bullshit and bias. I suspect there’s a reason why you “went in for broadcast journalism” and instead rose to the lofty heights of representing “gamers” and typing a blog most people have never heard of. Believe me, with your innate bias, lack of critical thinking and propensity for just making stuff up, I doubt any respectable news agency would have you as employee.
@Rob Roy – I find your rant on journalism ethics to be quite entertaining from someone who doesn’t know what “Broadcast Journalism” is:
“You “went through for broadcast journalism” (whatever that means) and you claim to be a journalist”
You know what CBC journalists should be doing right now and aren’t is asking the Liberals exactly what their platform is on copyright reform. I have to MP Wayne Easter several times over twitter. LPC are extremely mum on that issue. Interesting that it takes a political blogger to see through the partisanship and industry interests to get to the real meat of the story and start asking the hard questions.
The day we submit our nations newsrooms to copyright trolls, is the day we no longer have an independent free press. Think about it.
Since we are speaking to journalism ethics. Here are the ethics the consortium is refusing to hold true in their news reporting around political advertising. From the society of professional journalism’s code of ethics (ethics listed is here are the ones the consortium has been in breach of):
“- Take responsibility for the accuracy of their work. Verify information before releasing it. Use original sources whenever possible.”
Original reports in October 2014 neglected to take into account on the record comments from legal experts disputing that fair use for political ads was stealing. Instead they went to air knowing the facts were wrong.
“– Provide context. Take special care not to misrepresent or oversimplify in promoting, previewing or summarizing a story”
AS a result of not reporting on the legal experts in original news reports, context was not provided and facts were misrepresented.
” Gather, update and correct information throughout the life of a news story.”
This was done the day after, however CTV decided only to correct this information on CTV news channel, and went to air on their nationally syndicated newscast again without the context of legal sources throughout the life of this story back in October.
“– Support the open and civil exchange of views, even views they find repugnant.”
No explanation needed
“– Provide access to source material when it is relevant and appropriate.”
CBC misplaced their original lead story on this to avoid being punished by the CRTC
“– Avoid stereotyping. Journalists should examine the ways their values and experiences may shape their reporting.”
Fair dealing is stealing is a stereotype often used by copyright extremists and copyright trolls.
“– Label advocacy and commentary.”
Original consortium newscasts were not labelled as such further misrepresenting the facts when reporting on the political advocacy and commentary of the stations views.
“– Never deliberately distort facts or context, including visual information.”
Again legal sources left out of original stories in October 2014, and CBC is again deliberately distorting the facts and context of copyright law in it’s most recent release.
This is a big one: “Act Independently
The highest and primary obligation of ethical journalism is to serve the public.
– Avoid conflicts of interest, real or perceived. Disclose unavoidable conflicts.”
Never happened. Conflicts of interest is the fact they are rights holders.
” – Refuse gifts, favors, fees, free travel and special treatment, and avoid political and other outside activities that may compromise integrity or impartiality, or may damage credibility.”
Peter Mansbridge and Amanda Lang the biggest CBC personalities to throw this out the window, yet they fired Evan Solomon for this.
And my favorite:
” – Deny favored treatment to advertisers, donors or any other special interests, and resist internal and external pressure to influence coverage.”
Role for broadcasters is to allow all parties equal air time in advertisements regardless of how distorted or distasteful the ads might be. CBC cites journalism ethics regarding the fair use of those materials, but the entire consortium has breached a fair amount of accepted ethics by the journalism community, not to mention competition laws and possible jail time to stop political attack ads that are pretty much backfiring anyway. Question is why?
If you follow the evidence, this started with a letter from Stephane Dion to Elections Canada in 2013 trying to bring up copyright issues to protect the liberal party in attack ads. This letter was rejected by Elections Canada and further rejected by legal sources when the consortium journalists were sourcing the story. Why would the consortium falsely mislead facts, throw journalism ethics out the window? My best guess from following the copyright debates, is that it has to do with the Liberals copyright platform (whatever that is), and giving preferential treatment to the other parties which is why the CPC has backed out of the consortium debates. Considering how unethical the consortium has been acting, all parties should be backing out of these debates IMO. Otherwise it very much looks like we could very well see any criticism of Trudeau online using debate footage will be illegally taken down. How are the broadcasters going to enforce this online. How will they know those using the footage are from the Conservatives, Greens, NDPs or us political bloggers. It sends a dangerous precedent, and will greatly impact free speech if the consortium decides to do this, and with this latest CBC development, all indications are pointing in that direction.
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Rob Roy nailed it.
Think again my friend. CBC just outed by an ex-star reporter regarding the CBC being under political influence from the PMO on a certain story:
Jessie has done a lot of independent work, basically confirming that the CBC and it’s personalities don’t give two hoots about “journalism ethics”.
From a journalist with ethics: “This is a symptom of a broader disease that is eating away at the core of our democracy. Experts on climate, on medicine, on things that are central to our society are being silenced by a government that does favours for the politically connected. And that is just very dangerous for our future. ”
I think it goes far deeper than just favors for the CPC.
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What the hell was the CBC thinking when they decided to adopt Trudeau as their candidate, (not that they should be adopting any candidate), but really, the guy is brain dead.
They must be face palming themselves into a concussion the way that poor boob screws up every time he opens his mouth.