It's not just the presidential campaigns in the cross hairs here. During this election cycle, we have seen an explosion of citizen-driven online activism including videos that also make use of brief snippets of broadcast news and debates. I doubt that these efforts at political speech have fared any better in an environment where takedown notices know no limits.
Nor is it just political speech that is at risk. User-driven content sites are flourishing today on the Internet as the promise of the technology as a participatory medium finally begins to take root. These sites are fertile ground for free expression of all manner, with low barriers to entry, no mandatory prerequisites and little financial investment. Fair use is clearly a boon to this new participatory environment. Abusive takedown notices operate like digital temporary restraining orders, thanks to the 10-day delay encouraged by the statute.
If only resistance were easy. A basic legal bargain was cut in the drafting of the 1998 Digital Millennium Copyright Act, providing copyright liability protection in exchange for implementation of a notice-and-take-down regime. And that makes good policy sense. But because the definition of what constitutes "fair use" is squishy, takedown abusers have a lot of room to maneuver when claiming copyright violations. That can jeopardize users' practical ability to take advantage of fair use, even when the law is, theoretically, on their side.
What we have here is the quintessential "teachable moment." There are few things with higher visibility than the white-hot spotlight of a presidential campaign. The importance of fair use needs to be more broadly discussed and understood, and copyright industries need to do more than merely give lip service to fair use going forward.
It is also worth considering how to provide more effective deterrence against meritless takedown demands. As a start, entities submitting egregious takedowns should be exposed and embarrassed. Changes to the law could be considered as well, such as a requirement that a copyright owner submitting a takedown notice certify that it has fully considered whether the use of the content in question may be covered by fair use.
Let's hope this critical issue doesn't fade into the ether like a losing political candidate. Regardless of which of the two candidates ends up roaming the halls of 1600 Pennsylvania Ave., there should be agreement between them and their parties that aggressive use of takedown notices to stifle circulation of fair-use material is a problem.
And it's a problem that affects not just campaign ads, but other forms of speech such as commentary and advocacy, as well.
Leslie Harris is president and CEO of the Center for Democracy and Technology.