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The Fair Use of "Lipstick on a Pig"

BY Nancy Scola | Wednesday, October 6 2010

The Center for Democracy and Technology's Andrew McDiarmid is out with a report called "Campaign Takedown Troubles: How Meritless Copyright Claims Threaten Online Political Speech," a look at recent examples of political campaigns getting caught up in overly aggressive copyright enforcement when they incorporate news clips into their campaign ads. (Nothing like being the target of a take-down notice to revive a politician's passion for fair use.)

John McCain is something of a case study for the report. During the 2008 presidential race, his campaign complained to YouTube that its ads and videos had been yanked from YouTube "numerous times" under the Digital Millennium Copyright Act, including one that used a clip of CBS's Katie Couric commenting on sexism in politics during that whole "lipstick on a pig" brouhaha. McDiarmid looks at the political DMCA takedowns we know of, and concludes:

Based on available information, all the incidents discussed below appear to be straightforward cases of fair use. The uses are generally transformative: the targeted videos use footage from news broadcasts, originally intended to inform, in ads or commentary intended to argue for a specific candidate or position. As to the second factor, the footage at issue often involves factual reporting, which is generally less protected by copyright than highly creative works. With respect to the third factor, the videos typically incorporate only short segments of much longer broadcasts. Finally, it is highly unlikely that the use of the clips has any bearing whatsoever on any market for the original news broadcasts. And of course, all of these incidents involve political speech and hence issues of public concern, which weighs in favor of fair use.

As McCain's "lipstick" ad goes, CBS might have had a reasonable complaints about the misuse of Couric's words. But they weren't copyright ones. Copyright is meant to encourage content creators to keep creating. All indications are that Katie Couric had soldiered on.

One risk of overreaching DMCA claims, argues McDiarmid, is that campaigns get so worried about getting booted from YouTube altogether that they self-censor. The policy bit here is that politicians are getting caught up in the DMCA framework that many of them helped build. The DMCA set up an expedited "notice and takedown" system by which content owners -- CBS, FOX, MSNBC, and NPR are named in the report -- can get videos removed; the flip side is that it frees YouTube and other social services from having to monitor everything that gets posted on their platforms, an exemption without which it would be really difficult to run something like YouTube or Facebook. But how that system works, in practice, is something of a black box, to politicians and the rest of us alike.

CDT's hope here, it says, is to name and shame the problem -- drawing attention to it so that overreaching copyright claims on political ad content are harder to pull off.