Political Speech and DMCA Takedowns: An Imperfect Balance

By: Jarred Taylor

If you follow election campaigns, you’re likely familiar with the idea of the October surprise.  The term refers to a last-minute revelation that forces a candidate’s campaign into crisis response mode, at a time when the slightest hiccup might derail their success.  Take, for example, California gubernatorial candidate Meg Whitman’s recent woes over her former housekeeper.

Now a very different sort of October surprise looms as campaigns increasingly come to rely on the Internet for their messaging.  In addition to defending against traditional last minute revelations, campaigns must now fight against censorship disguised as copyright enforcement.

The Center for Democracy & Technology recently released a report detailing how the Digital Millennium Copyright Act (DMCA) poses particular difficulties for political actors, especially in the crucial weeks or days before an election.  The report investigated twelve instances where political parties, candidates, advocates, or bloggers had their videos removed from hosting sites like YouTube after a content owner filed a takedown request alleging copyright infringement.

The DMCA requires the hosting site to remove the video immediately if it wants to retain its safe harbor against intermediary liability.  The party whose video was removed may then file a counternotice and eventually have their video restored, if the complaining party decides not to sue them first.  There are many who criticize the overall fairness and effectiveness of the DMCA’s takedown mechanism.  However, for a number of reasons, the CDT report concludes that it is a particularly inequitable solution when political speech is involved.

First, CDT’s analysis finds that each of the twelve videos was a clear case of fair use.  An affirmative defense to copyright infringement, the fair use doctrine strikes a balance between creative and free speech rights by permitting third parties to reuse copyrighted works in certain circumstances.  The fair use test weighs four factors: how transformative the new work is of the original; how creative the original work was; how much of the original was used in the new work; and whether the new work affects the market for the original.  All twelve videos seem to fall firmly on the side of fair use.

The report not only concludes that the takedowns were based on illegitimate copyright assertions; it also suggests that they weren’t motivated by copyright concerns in the first place.  Your next guess might be that the takedowns were partisan in nature.  Surprisingly, it doesn’t appear so.  Fox News, for example, sent several takedown requests for McCain campaign videos in 2008.  Instead, the complaining parties (who were almost exclusively news companies) were concerned for their reputations as objective journalism organizations.  CDT notes that while concerns over false endorsement or confusion may be fair, they are not interests protected under copyright law (the report cites a paper by William & Mary Law School’s own Professor Laura Heymann underscoring this issue).

CDT also highlights the consequences for political speech from the DMCA’s “shoot first ask later” approach.  While the censored party has recourse to the counterclaim procedure, it can take up to ten business days for the video to be restored.  The report puts it best: “In a political campaign, ten business days can be a lifetime,” especially in the final days before an election.  What’s more, in compliance with DMCA requirements, content hosts may completely suspend an allegedly infringing account after its subjection to a certain number of takedown requests.  This could prove deadly for a political candidate relying heavily on web video for outreach.

CDT strikes a hopeful note at the end of its report, citing C-SPAN’s recent decision to freely license some of its video content for third party reuse.  However, it ultimately (and disappointingly) declines to recommend a broader solution.  Instead, it crosses its fingers that content owners will magically realize the error of their ways and “refrain” from future abusive behavior.

My expectations for such epiphanies being fairly low, I hope that CDT (or kindred organizations like the Electronic Frontier Foundation and Public Knowledge) will follow this report with some substantive proposals.  While there have yet to be any strictly politically motivated abuses of the system, it is only a matter of time before such a case arises.  Some sort of reform is clearly needed, whether through stricter enforcement of the current safeguards against abuse, or strengthening those safeguards for categories of speech that warrant particularly strong protection.

  • Categories

  • Archives

  • Disclaimer

    The content of this website is not intended to be legal advice, nor should it be interpreted or used as such. The authors and editors make no representations or warranties as to the accuracy of the information posted.