Fair Use and the Election

Oct. 31, 2008 — -- You know the world has gone tilt when the McCain campaign is right about being wronged by Fox News and NBC News is wrongly demanding that the Obama campaign pull a national ad from the airwaves.

At issue in both instances are claims by the news organizations that the campaigns violated copyright by including snippets of their broadcasts in campaign videos without permission.

The issue came to a head as these arcane episodes usually do: at the intersection of pop culture and civil liberties. Several times during this election season YouTube has informed the McCain campaign that several of its videos were being stripped from the site after a news organization alleged the videos violated its copyright.

The McCain campaign in turn fired off a letter to YouTube decrying the Web site's hasty action, while noting the content removed was "clearly privileged under the fair use doctrine" of the copyright act. But YouTube was simply acting as encouraged by law, which says that if the site doesn't immediately remove alleged infringing content, it potentially could be treated as a party to the violation.

By now the irony of the Fourth Estate using copyright law to justify its censorious action should be obvious. If the media can't tell the difference between political speech and piracy, we're certainly living in twisted times.

The McCain letter points out that spurious "takedowns" of online video or other content need to be prevented to keep "from chilling political speech." That's exactly right. Perhaps any chilling effect is merely an unintended consequence of knee-jerk reactions by media companies to seeing some of their footage being used online.

But it also raises the risk that copyright law could be used as a bludgeon in the tool belt of bare-knuckle politics. In the event of a disputed takedown request, the law strongly encourages Web sites to wait at least 10 days before reposting removed material; that's how long the site has to wait after receiving notice from the content owner that the copyright violation claim is bogus. Ten days might be a blink of an eye for some purposes, but it can be a lifetime during a heated political campaign.