Prof. Justin Hughes, Cardozo School of Law, Yeshiva University
July 20, 2009

[This is the third and final essay in a series about copyright in the 2008 presidential campaign.]

In the first two essays of “Election Copyright” we considered musicians trying to use copyright to protect their reputational and “personality” interests, then how the originality standard of copyright, for better or for worse, imposes serious limits on the kinds of copyright claims that should be made about photography.

Now, in this third installment, we bring these topics together to consider what should have been the most controversial copyright issue in the 2008 election: the use of “takedown notices” under the Digital Millennium Copyright Act (DMCA) to have political ads removed from the Internet.

The DMCA “takedown notice” system, now in Section 512 of the Copyright Act, is intended as a way for copyright owners to be able to get infringing material off websites and hosting ISPs quickly and without going to court.  When the DMCA was being considered in 1998, there were concerns that takedown notices would be used – without legitimate copyright grounds – as a private means to censor people and get disagreeable stuff off the Internet (criticism, unflattering reports, etc.)  To address this and protect free expression, a “counter-notification” system was put in Section 512 by which a person could tell the ISP to restore the material to the Internet and the ISP could do so without liability.

Studies on whether the Section 512 system has had a substantial adverse impact on free expression have been inconclusive, mainly because we do not have a statistically meaningful data-set of takedown notices.  Some American academics continue to criticize the system, while at least one European study concluded that our takedown system is more protective of free expression than copyright law and ISP practices in Europe.

Even with this counter-notification system, an abiding, legitimate concern about Section 512 is that the counter-notification procedure could take more than a week, still allowing someone to throttle free expression with an illegitimate 512 takedown notice.  The scenario envisioned was a political race in which a takedown notice keeps important information, accusations, or commentary off the Internet during a key period.  (Think of Michael Franti’s wonderful spoken-word album “Stay Human,” in which a gubernatorial candidate’s complicity in a murder becomes known only moments after the candidate wins the election.)

As I say, that was an abiding, legitimate concern when Section 512 passed in 1998.  Then, nothing of the sort happened.  When takedown notices were finally used in last year’s presidential election, the collective reaction seems to have been a yawn.

So what happened in the 2008 election and is it a cause for concern for the future?  Actually, there seems to have been at least a couple different takedown notice situations that are importantly different in their facts and, therefore, implications for copyright policy.

In September 2008, CBS sent a takedown notice against a McCain campaign web ad for the use of some footage of its anchor Katie Couric – a clip from one of her “Reporter’s Notebook” filings from June.  Because this was a clip of one of its own employee’s reports, CBS had a solid foundation for a copyright claim.

What is more interesting, however, is that CBS was not trying to defend an economic interest.  This takes us back to the point of my first election copyright essay: copyright is often used to protect non-economic interests and, when that happens, we need to think carefully about what is happening.  CBS felt that the short clip of Couric was being used in a deceptive way to imply that she was being critical of the Obama campaign; the network was concerned that the use created the impression that they were endorsing one side or the other.

In other words, the stated motive of CBS was similar to the stated motive of many musicians who have objected to the use of their music by candidates – that use of the copyright work created a false impression of endorsement and, thereby, sullies their reputations.  That’s a reasonable concern for both an artist who doesn’t want to be identified with a politician of a particular stripe and a media outlet that doesn’t want to be identified with politicians of any stripe.

(Of course, many folks would say that use of the Katie Couric clip was fair use, but I’m not so sure if the ad genuinely created a misleading impression.  The first factor in the Section 107 fair use test is “the purpose and character of the use…” and, while it would be new law, I’d be perfectly comfortable arguing to a court that a knowingly deceptive use points against fair use.  If an unauthorized use is less likely to be fair use when it’s commercial, shouldn’t it also be less likely to be fair use when evidence shows it clearly misleads or was intended to mislead people?)

A different takedown scenario seems to have occurred the next month – in October – when Fox News took the position that a McCain web ad called “Tied Up” was a copyright violation.  The “Tied Up” web ad used a clip from a debate appearance on the Fox network.  Fox argued that – again on the Section 107 first factor – because the clip was being used to raise money for the McCain campaign, it was a “commercial” use and unlikely to be a fair use.

That’s an interesting question in light of how we understand commercial uses nowadays.  If the ad really was focused on fundraising, it’s a fair point that national political campaigns, particularly in their fundraising operations, are big, if short-lived, businesses.

But the more interesting point – returning to our discussion of copyright in photographs – is whether a network or television station could really have any protectable copyright in a debate clip, particularly one that was just a candidate(s) making statements.  The words, after all, belong to the candidate – they aren’t original to the network.  (Raising the question whether Obama and McCain signed some kind of agreement to assign any interests they had to the network.)

Presumably the lighting on a candidate’s face is fairly standard.  While the choice of different camera angles over the course of an hour debate can certainly reflect original and creative choices (and therefore give rise to a copyright for the whole show), the single shot of a candidate answering a question is probably “garden-variety.”  In other words, a televised debate gets much the same originality analysis as photos of a candidate speaking at a podium or dais.

How about the background?  That is, whatever of the debate set is showing during the close-up of the candidate answering the question?  That’s one place where the organizer of a televised debate might have some originality that a photographer covering a campaign event wouldn’t.  If there is copyrightable expression there, a lot of copyright experts would say the use is de minimis.

I don’t know whether there was a protectable originality in the clip at issue.  But if there wasn’t, this goes again to a point I was making in the second essay:  that we have stretched the concept of “originality” to create protection for broadcasters when strict application of the doctrine frequently wouldn’t produce the results we want.

Other countries have distinct broadcaster (and phonogram producer) rights separate from originality-based copyright.  Sometimes our approach works better, but sometimes our approach leads lawyers to make claims to protect investment that really do not mesh with our law’s foundational concern with originality.

Perhaps what was most interesting about the takedown notices in the 2008 election is how LITTLE controversy they caused.  The McCain campaign sent a letter to YouTube calling for special fair-use analysis of election campaign videos, but YouTube politely declined.  The Electronic Frontier Foundation and a couple other groups used the occasion to critique the DMCA provisions in various ways.  But otherwise, there was not much reaction.  Why?

We can posit a few reasons, although none of them is particularly principled.  First, most people who are critical of these DMCA provisions are probably Democrats.  They had conflicting feelings  when the Republican candidate found himself mired in copyright controversies, whether from musicians or media outlets.  (Imagine what the reaction/non-reaction would have been if the 2004 Kerry campaign had used bogus DMCA claims to get the “swiftboat” ads off, at least, the Internet.)

Second, no one thought that the disappearance of these ads from the Internet was going to make any difference in the election – although we could certainly imagine situations where it could.  Third, in the case of clips from election debates, candidates themselves can fix the problem: accepting invitations  to appear only with news outlets that agree, in advance, not to try to assert copyright over candidate statements.

Finally and most importantly, the debate about the DMCA takedown provisions is old hat.  As Russell Jacoby wrote in 1987,  “few observers or historians will admit that in cultural clashes boredom often has the final word: no one shows up for another round.”  While there are still controversies that get people’s attention, the system seems to be bringing fair use into the mix adequately  – as in the cases about the Diebold voting machine documents and the baby dancing to Prince.

As that happens, the takedown provisions are even less likely to jeopardize free expression and democratic discourse.  When it comes to fair and robust elections, folks probably realize we have lots of other things more deserving of our attention.