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.

Copyright Extremism

While it might be nice if YouTube and similar sites resisted abusive takedown notices, the root of the problem here is the copyright extremism that leads to bogus takedown notices getting submitted in the first place. The media companies demanding takedowns appear to be either ignoring the fair use provision of the copyright act or adopting a ridiculously crimped view of its scope.

It seems apparent that the broadcast snippets used by the campaigns fall under fair-use provision; the McCain campaign's letter to YouTube said the reused snippets were no longer than 10 seconds in length.

While broadcasters deserve scrutiny for actions they've taken against political campaign ads, it should be noted that there is wholesale unauthorized posting of broadcast content to YouTube that does violate copyright and is an entirely legitimate target for takedown notices.

Indeed, copyright owners face a difficult challenge trying to keep up with all the infringing postings. But original videos that use short excerpts are different, and there is no reason that they need to be collateral damage in the broader copyright fight.

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.

Deterring Meritless Takedown Demands

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.