How Copyright Law Censors Campaigns

Once again, political campaign videos are being censored by copyright law. This time, Mitt Romney is the victim. After President Obama created an ad mocking Romney’s tuneless performance of America the Beautiful, Romney responded with an ad featuring a few seconds of Obama singing Al Green’s Let’s Stay Together. Unfortunately for Romney, his ad was hit by a takedown notice from BMG Rights Management and was removed from YouTube.

BMG’s takedown notice is baseless. Romney’s video plays a tiny snippet of President Obama singing the lyric “I’m so in love with you.” At the same time, the video suggests that Obama has shown love only for large donors. Accurate or not, this is core political speech and the ad uses the original content as fodder for its commentary. Moreover, the video does not harm Al Green commercially. Indeed, this kind of attention is much more likely to improve the market for Green’s songs. Fair use law clearly protects Romney’s use.

In a statement, BMG said:

Our duty is to protect the rights of our songwriters and other clients without regard to political party or cause. In this case, the use of the music in question was not approved by the rights holder. As a result normal take down procedure was followed.

But BMG misses the point. It is simply irrelevant that the music was not approved by the rights holder; fair use exists precisely to allow for use without permission. In reflexively shutting the video down, BMG is asserting rights it does not have.

If Romney’s ad was protected, why did it get taken down? Under the DMCA’s takedown process, the copyright holder is usually able to remove content even when its claim is weak. To get the material back online, the poster must then file a counter-notice. The material will typically stay down for at least ten days. As others have pointed out, ten days can be an eternity in a political campaign.

This is a recurring problem. During the 2008 election, both Obama and McCain had videos removed as a result of baseless takedown notices. The upshot is that copyright holders can act as private censors, using DMCA to silence speech at the height of a political campaign.

Update: Romney has succeeded in getting his video back up on YouTube. Rather than wait the full ten business days under the DMCA, YouTube has restored the video. In this case, it appears that the widespread news coverage might have led to a quick resolution. Unfortunately, this is the exception, not the norm. Private censorship of campaign videos is likely to continue.

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