A Wired article describes the problem of DMCA notices in the political context. The McCain campaign, which has seen several videos yanked from YouTube based on alleged DMCA violations, has asked the site to commit a full legal review of all take-down notices for content posted by political candidates and campaigns.
In the New York Times, Prof. Lawrence Lessig explains that the use of excerpts from debates and interviews should be considered fair use when employed to create political advertisements. Instead of relying on the existing nebulous fair use analysis, however, Lessig suggests that copyright law be revised to clearly exclude political content. Otherwise, Lessig says, free speech will be unjustly stifled. The editorial can be found here.
The Supreme Court has hinted that the fair use doctrine is necessary to reconcile the inherent tension between the Copyright Clause and the First Amendment. See Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985) (describing copyright law as "the engine of free expression"). This doctrine is particularly well-developed within the Second Circuit, which has explained that the role of the fair use doctrine is to balance "the public interest in the free flow of ideas with the copyright holder’s interest in the exclusive use of his work.” Warner Bros., Inc., v. Amer. B’casting Co., Inc., 720 F.2d 231, 242 (2d Cir. 1983). Thus, where matters of public interest are concerned, courts have held that the importance of the public’s right to full information may outweigh the content owner’s profit interest. See, e.g., Time, Inc. v. Bernard Geis Asscs., 293 F. Supp. 130 (S.D.N.Y. 1968) (holding the reprint of video stills from President Kennedy’s assassination to be fair use).
The notion of fair use has often come into conflict with the Digital Millennium Copyright Act (DMCA), passed in 1998 to prevent copyright infringement on the Internet. The DMCA set up a notice-and-takedown system, requiring those who believed their rights were infringed to notify a website. So long as the site removes the offending content, it avoids liability. In order to have their content allowed back on the site, posters must affirmatively challenge the DMCA claim. Because this encourages sites to remove content first and ask questions later, this system has been subject to criticism on First Amendment grounds (see the EFF's site for more).
Political advertisements fall in an interesting area of First Amendment doctrine. In general, political speech receives the highest degree of First Amendment protection, because it is at the core of a democratic society. Commercial speech, however, may be subject to greater restrictions. In its most recent decision dealing with campaign advertisements paid for by third parties, the Supreme Court declared, "Where the First Amendment is implicated, the tie goes to the speaker, not the censor." See FEC v. Wisconsin Right to Life, 551 U.S. __ (2007).
Although the removal of political advertisements mid-campaign is troubling, there is an easy solution to the McCain campaign's soundtrack problem--buy a license to use the songs! We have a mandatory licensing scheme for music in the U.S., and those who wish to use the creative works of others should pay them for it. Moreover, a use will not be "fair" when it affects the licensing market for a work, which unfettered access to the works of others may well do. It is one thing when a creator makes a mashup for fun and posts it on YouTube, but here we are dealing with presidential campaigns that have millions of dollars to spend. Licensing fees tend to be quite reasonable, so is it really too much to ask campaigns to pay them? Feel free to disagree with me the comments.
The use of debate clips and interviews is more problematic. Although most courts would find it to be fair use, the DMCA system allows websites--not courts--to make the initial call. Websites have every incentive to err on the side of caution, and remove the content from their sites. For this narrow use, I believe Lessig's suggestion is an important one to consider.