How copyright rules silenced Romney

A great real-life example of how copyright can become censorship

President Barack Obama sings before speaking at a campaign event on Thursday, Jan. 19, 2012. (Haraz N. Ghanbari/AP)

Copyright is too often described as a “divisive” issue. The truth is that aside from some people who are passionate about copyright reform and some industries that are passionate about copyright enforcement, there are many, many more people who couldn’t care less. To this bewildered majority, the “copyfight” can seem a bizarre and geeky policy debate locked in time, forever repeating talking points from 2000′s Napster vs. Metallica fracas.

Those of us on the reform side of the debate are quick to counter such indifference with a passionate plea to our fellow citizens: “This isn’t about piracy,” we say. “It’s about freedom!” And our fellow citizens sigh, because even though they do not see how copyright is about freedom, they know that we will tell them.

The ensuing explanations too often rely on slippery-slope arguments set in a hypothetical future where copyright is used to shackle babies. But after last week, we can use a more tangible and immediate example to preach the gospel. Last week, copyright impeded democracy in America.

It began with Mitt Romney, singing. The Obama campaign used footage of Romney belting out “America the Beautiful” ( a public domain tune) in a clever attack ad which juxtaposed Romney’s patriotic warbling with information about all the jobs he has supposedly shipped overseas as a businessman and as a legislator. Romney countered with an ad that used Obama’s rendition of Al Green’s Let’s Stay Together with stats about favours Obama is accused of having paid to fundraisers and cronies. Both ads demonstrated conclusively that politicians sing at their own peril.

Then along came copyright. BMG sent YouTube a DMCA takedown notice, claiming that the Romney team’s ad violated their ownership of the Al Green tune. Blogs like Politico were quick to point out that clips of Obama covering Al Green had been online for months. It was only when Romney used the clip to make a political point that BMG took action.

The Romney campaign said that their use of the audio was covered under “fair use,” which allows exceptions to copyright specifically for things like political commentary. They happen to be 100 per cent right about that, and their ad will inevitably be re-posted to YouTube.

But that will take weeks. Under America’s “Notice and Takedown” copyright system, all you need to do to get content removed from the Internet is to give a website “Notice” that you think the content violates your copyright, and they’ll go ahead with an immediate “Takedown” of the content until the matter is resolved.

Current copyright law doesn’t gives BMG the right to block a piece of political propaganda and strip Mitt Romney of his fair use rights. It is a flaw in the enforcement legislation that essentially gives BMG them the power to void Romney’s rights. It’s a limitation of political freedom under the guise of copyright rules–the kind of thing everybody should care about.

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How copyright rules silenced Romney

  1. Well said Jesse. It’s just too bad the crew at The Pirate Bay didn’t offer to host the video to make a point.

  2. Fair use is an affirmative defence and thus denies takedown by law.

    • The nature of the defence is largely irrelevant to the initial takedown, because under U.S. copyright law the takedown happens BEFORE a defendant has an opportunity to respond to the charge. Sometimes, the takedown happens before the defendant is even aware that they’ve been ACCUSED of something.

  3. The answer for this kind of thing is anti-slapp laws with brutally crushing punishments for those that misuse the copyright protection system. These penalties need to be large enough that even giant media conglomerates like Disney, Newscorp, or Time Warner are wary about it.

    • Why not make the penalty that your organization can’t do another Notice for 90 days?

      • No, because they still should be allowed to use the law for legitimate problems. A thief does not lose his protection from theft.

  4. But the flip side of this scenario is a to have legitimate copyright holders having their copyright infringed upon, intellectual property stolen, and possibly loss of revenues while they attempt to get some kind of legal redress taking possibly weeks or months.
    Who should get the benefit of the doubt: the legitimate owner of a piece of intellectual property or someone who doesn’t own it who is attempting to use it?
    I grant in this particular case BMG is pretty obviously the bully, but not every case is going to be as clear cut or involve a big coprporation vs. “freedom”.
    The solution is probably something along the lines of what Thwim above suggests – penalties if a take-down request is rejected and deemed to be frivolous or antagonistic.
    You’re still preaching like an evangelist though, Jesse, and not convincing me by not considering the nuances or complications of the problem.

    • Our system already has that decision-making procedure built into it. It is called “presumption of innocence”.

      • As I understand it that’s one of the main problems with Notice & Takedown; it presumes guilt.

    • Fictitious property such as copyright will always be circumvented by its own fictitious nature. Its not an issue that can be forced, people and technology will make sure it is redundant eventually. The whole enterprise of coercively preventing communication has a an inherent vice that should be recognized from the start. Anyone who gains income from such licenses should understand that it is unearned, even if they are the creators of the product the license is attached to. That is just the way information goes.

  5. While not a lawyer, I still can raise doubts about the writer’s argument re: fair use. Fair use does not happen when an entire work of art is reproduced without compensation or licence, for some tangible benefit to the borrower/reproducer. Fair use is generally limited to EXERPTS that are being cited or studied, so that it is the work itself that is under scrutiny. THAT DOES NOT SEEM TO BE THE CASE HERE. Analogy: you can’t ‘borrow’ a song as a background noise or as a muted soundtrack; you can, however, put up a portion of it as an object of scrutiny. A politician cannot ‘just use’ a copyrighted song as his theme song, arguing that politics is ‘not commercial’. If only one or two bars have been cited, Romney has a case. If the entire song, or even one whole verse have been reproduced, he’ll have trouble.
    Secondly, there is the right, under copyright, not to have a protected property ‘deformed’ by a user. If the owner of the copyright to this song objects that, by using it, Romney is lending a political cast to the song that he never intended, and that that cast will permanently deform it, the owner may fairly prevent that from happening (although that is a very complex thing to argue). Prediction: Mr Romney’s appeal to fair use will fail.

    • I’m pretty sure that the fair use exception in the United States has been pretty broadly interpreted by U.S. courts. Given that a political opponent showing a clip of the PRESIDENT OF THE UNITED STATES singing a song likely constitutes both satire and political speech SIMULTANEOUSLY, I’d actually be shocked to see a U.S. court say that it’s not fair use.

      Romney wasn’t using the song as his theme song, he was using it to mock his political opponent. I’m fairly certain that both political speech and satire have pretty much ALWAYS overridden copyright concerns in the U.S. courts.

  6. Classic fake problem scenario. It is not Romney’s political speech that was challenged using copyright; it was his use of a song not in the public domain. Romney continues to be free to say whatever he likes about his opponent, and to spend his many billions in so doing. In fact, if he’d offered a bit of money to license the song in question, this “problem” for him might never have arisen.
    Many music artists have demanded that politicians not use their work to score political points. David Byrne sued a Florida politician, under copyright law, for a similar use. He won, and should have.
    Your two-sided copyright debate construct is simplistic and inaccurate. Reformists on the side of the angels and protectionists with horns and tails. In reality, most of us in this argument just want actual law and actual outcomes discussed, rather than the fear-mongering fantasy you and your fellow “reformists” favour.

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