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John McCain, who has never previously missed a chance to play up the importance of the DMCA's restrictions on public usage, has suffered a bit at the hands of the DMCA.  His ads on YouTube have been the subject of takedown notices from CBS, NBC, and even CBN (the Christian Broadcasting Network).  He's now complaining about this to YouTube, writing a letter (PDF) that includes:

[O]verreaching copyright claims have resulted in the removal of non-infringing campaign videos from YouTube, thus silencing political speech. Numerous times during the course of the campaign, our advertisements or web videos have been the subject of DMCA takedown notices regarding uses that are clearly privileged under the fair use doctrine. The uses at issue have been the inclusion of fewer than ten seconds of footage from news broadcasts in campaign ads or videos, as a basis for commentary on the issues presented in the news reports, or on the reports themselves. These are paradigmatic examples of fair use...

Finally, something the McCain campaign and I agree on, 100%.  But oh, wait, there's more:

[W]e believe that it would consume few resources--and provide enormous benefit--for YouTube to commit to a full legal review of all takedown notices on videos posted from accounts controlled by (at least) political candidates and campaigns.

Ah, that's more like it - McCain first, country second (perhaps McCain's only reliable principle?).  Fred von Lohmann, an attorney with the Electronic Frontier Foundation, points out:

The obvious problem with this solution? It assumes that YouTube should prioritize the campaigns' fair use rights, rather than those of the rest of us. That seems precisely backwards, since the most exciting new possibilities on YouTube are for amateur political expression by the voters themselves. After all, the campaigns have no trouble getting the same ads out on television and radio, options not available to most YouTubers.

This isn't posturing - think about the most effective political videos you've seen.  Were any of them produced by a campaign?  I'll bet they weren't.  One of the most important political projects to be undertaken in the coming years will be not only to put a halt to - but roll back - IP laws that reach beyond commerce to control political discourse and culture.  Think we can count on McCain's help when the time comes?

(This was originally written and posted at Blacknell.net, but this wrong-headed front page diary compelled posting it here, too.)

Originally posted to Sui Juris on Wed Oct 15, 2008 at 08:02 AM PDT.

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Comment Preferences

  •  Fair use is too important to get wrong (7+ / 0-)

    A vibrant political discourse depends on fair use carve-outs from copyright laws.  Without them, you'd have to get the approval of every network station before you could even show someone else a clip of a political speech, or pass on news you read at a paper's website.  It's too important to toss aside for the benefit of an attack on McCain.

  •  Off topic. (0+ / 0-)

    Could someone tell me why the diaries about Dick Cheney keep disappearing?... I don't understand..

    I'm what's called, a Political Neophyte. Thankfully, I've had the good sense to acquire knowledge, politically.......:o)

    by secret38b on Wed Oct 15, 2008 at 08:25:40 AM PDT

    •  Excuse me? (1+ / 0-)
      Recommended by:
      Sui Juris

      Just how is protecting political speech on the internet off topic, just because it happens to be some of the other guy's speech that's being restricted right now?

      We're overreaching here, and it's frightening that the "leave it all on the road" mentality (which I'm generally behind) is encouraging people to put convenience over principle. But McCain is fighting the right battle today, even if it's for the wrong reasons.

      I predict that we'll come to regret not getting on McCain's bandwagon in order to put in place protections for progressive speech on the 'tubes, picking out one chunk of this flaming wreck of a campaign to our own devices.

      "I know Hawaii is a state." -- Cokie Roberts, 2008

      by Exhausted Pennsylvanian on Wed Oct 15, 2008 at 08:32:51 AM PDT

      [ Parent ]

  •  Yes. (2+ / 0-)
    Recommended by:
    Sui Juris, My Stupid Opinion

    You said it best.

    It's clearly not a concept most people are familiar with, and I wouldn't be familiar with it at all if I didn't work in the open source software industry where we are constantly fighting to remind people that some sharing is OK, and that sharing ideas, things like mathematics, science and algorithms can't (or shouldn't) be restricted.

    It just goes to show how successfully the entertainment industry and proprietary software companies have shifted the terms of the debate, framing all sharing as piracy.

    The irony is that I bet a lot of the people who actually do share music, use samples, or share software don't know that they have the right to do it (in a limited way) legally.  They see themselves as lawbreakers, accepting the terms laid out for them by copyright owners.

  •  I'm There (0+ / 0-)

    << <br>One of the most important political projects to be undertaken in the coming years will be not only to put a halt to - but roll back - IP laws that reach beyond commerce to control political discourse and culture.  
    >>

    Keep me posted.

    •  I hope that this is something that all of dKos (2+ / 0-)
      Recommended by:
      cdodd, My Stupid Opinion

      will appreciate.  Most posters on this site don't realize it, but a goodly portion of our conversation depends on ensuring that IP laws don't reach into and control our conversation.  Every YouTube'd video of a politican's gaffe, every posting of a bit of insightful commentary by Krugman, etc. - those are all at risk.  I know that Kos gets it - and I'd have hoped that all of the front pagers did, too.  In any event, it's something that we'll have to make a concerted effort to push on (because we certainly can't rely on elected Democrats to do it for us) after the election.

  •  amateur vs. professional (1+ / 0-)
    Recommended by:
    Sui Juris

    a major difference between amateur and professional uses directly effects fair use analysis...

    17 U.S.C. § 107. Limitations on exclusive rights: Fair use
    Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

    (2) the nature of the copyrighted work;

    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

    (4) the effect of the use upon the potential market for or value of the copyrighted work.
    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

    there is hardly any profit motive, nor is there any significant licencing market displacement involved with the expressive, and arguably reasonably transformative use by individualized amateurs.

    But political media professionals are involved not just in free expression, but also in a business for which they are frequently compensated. While their use could be transformative if used for commentary, criticism, etc..., that alone isn't necessarily enough. Commercial licencing of music for use in advertising, and even for public performance, is a market upon which copyright holders rely, and to simply let an entire segment of an idustry to fairly use where other segments can't would be unfair. Non-political advertising would find itself a second class citizen as compared to political advertising that would use consequence free. Also, copyright holders could see the remaining value of their work lowered as potential non-political licencees question whether their investment may be poached by a political fair user.

    ...and beyond copyright, there's trademark and false/implied endorsement issues

    up/dn/down/umop
    Michelle Bachman: nutty even by wingnut standards

    by PaintBoy on Wed Oct 15, 2008 at 08:46:09 AM PDT

    •  good analysis, but I'd point out (1+ / 0-)
      Recommended by:
      PaintBoy

      that 1) music is less of an issue, I think (or at least one I'd be happy to defer (see, e.g., Lessig's recent thoughts on it), and 2) non-political advertising is already a second-class citizen.  We regulate that pretty tightly, compared to political speech (which, DMCA aside, is virtually - and correctly, in my view - unregulated).

      I'll happily take on the trademark issue - if I'm talking about McDonald's sucking, they're not going to be able to hide behind a trademark claim to stop me from identifying McDonald's.  The false/implied endorsement is a little more complicated, but a fairly rare occurrence, I'd say.

      •  false endorsement (1+ / 0-)
        Recommended by:
        Sui Juris

        I think a lot of what's happened with commentary around here is mostly goosed along by the narrative of McCain using various songs, and then the artists asking him to stop... not necessarily the legal details, but the sense of creative people vs. uncreative exploiters attempting to free ride on hipness, passion, etc.

        This narrative hits people in that fair/unfair spot where the ghost of John Locke lives, and people look for law to hang that feeling on.

        I think that because copyright law has been more out front for a while, and because it seems to be somewhat more bright-line and has more teeth, it becomes the go-to concept in the minds of the masses.

        But for the Heart and Jackson Browne type situation, I think it's really the false/implied endorsement concept found in trademark law that should be the go-to. But there is also fair use in trademarks, and so descriptive uses and nominative uses are allowed. With proper attention to moral rights/anti-plagerism principals (e.g. full and accurate attribution, disclaimers and disclosures) I think political commentary should have tremendous fair use leeway.

        up/dn/down/umop
        Michelle Bachman: nutty even by wingnut standards

        by PaintBoy on Wed Oct 15, 2008 at 09:16:24 AM PDT

        [ Parent ]

        •  Yes, ppl are conditioned by Sarah Barracuda (1+ / 0-)
          Recommended by:
          PaintBoy

          But, mixing up new creative content is a different beast than public performance. I'm much more sympathetic to artists that are pissed about their work being played, sans commentary, at rallies, even though it's the public performance where McCain is more or less 100% on the side of the law - he payed licensing fees fair and square.

          It seems McCain, with the public performance business, is breeching an informal convention that campaigns would or should respect requests by artists not to play their music, even though he is clearly not breaking the law (this "false endorsement" stuff is plausible, but a stretch). That social convention isn't one that chills free speech in the way that these DMCA takedowns do...

          ...not sure this was a fully coherent thought, but anyway, there you are.

          "I know Hawaii is a state." -- Cokie Roberts, 2008

          by Exhausted Pennsylvanian on Wed Oct 15, 2008 at 11:41:05 AM PDT

          [ Parent ]

      •  Songs: NO lawyer here (1+ / 0-)
        Recommended by:
        Sui Juris

        but with music, [and given that this is a quick oversimplification] an established legal and administrative framework exists for (1) compulsory license to perform a song, that is, if I want to sing and/or record my own version of "Jailhouse Rock," nothing can stop me, not even Elvis' ghost. ASCAP, BMI and so on exist to administer the royalties generated by my hit version of Jailhouse Rock; agencies like Harry Fox act as clearinghouses for the nominal licensing arrangements.

        a framework exists for (2) blanket licenses for music clubs, juke box owners, radio and TV station ... again, administered by ASCAP, BMI, et al. Yes, in theory at least,your dentist is supposed to have a license for that background music.

        It's a relatively simple and sensible system though it is biased toward the authors and publishers of megahits in the statistical slicing up of performance royalties.

        (There are other royalties called "mechanicals" which are per-track on singles, LPs, CDs and so on and these don't enter into the discussion), and there may or may not be royalty issues with them in digitial media; different kettle of nettles.

        So if Sarah P wants to record her own version of "Barracuda" with the Tom DeLay All Stars -- she can by paying the nominal license fee; and of course the writer gets certain royalties based on sales if any sales happen.

        If the Regluglicans want to play whatever canned music during their convention, they can. Presumably, the convention center has been paying for a blanket use license. It's possible to McCain campaign has paid a blanket fee for use of music.

        Where there's an issue is that the campaigns are using the various songs as adjuncts to advertising. That's using a specific artist's work as part of endorsing a product, and those are separate, case-by-case negotiations.

        Specific recorded versions are indeed the artist's property to control, in ads, soundtracks, and so on. The composition, consisting of words, tune and chords, are subject to the compulsory license.

        Put another way, there's a great little movie that came out about 10 years ago called "Dazed and Confused." Led Zep can't stop the director from using that title. But Robert Plant did NOT grant permission to use that Led Zep song in the movie, which is why it isn't in the movie despite what the director wanted.

        So with music, it's not really a question of "fair use."

        With other things, like video clips, it IS a question of "fair use" of material generated by a news organization that it ostensibly holds the copyrights on.

        Nobody can copyright facts, and nobody can copyright what they say in the public arena. CNN can't sue me for making a video of Sarah Palin at the same time they make a video of her. But they do own the copyright to their recording and broadcast.

        I think this is right.

        So clearly we need to define, in media space, something similar to the public arena. If CNN for example is claiming to present public discourse, others should be able to take their representation and layer further commentary upon it as part of political free speech.

        Feel free to poke holes in my comments ...

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