[A2k] Lawrence Lessig in the New York Times: Copyrigh t and Politics Don’t Mix

[Thiru Balasubramaniam]

October 21, 2008
Op-Ed Contributor
Copyright and Politics Don’t Mix
By LAWRENCE LESSIG

THROUGHOUT this election season, Americans have used the extraordinary
capacity of digital technologies to capture and respond to arguments
with which they disagree. YouTube has become the channel of choice for
following who is saying what, from the presidential campaign to races
for city council.

But this explosion in citizen-generated political speech has been met
with a troubling response: the increasing use of copyright laws as
tools for censorship.

A recent dispute in a race for New York State Assembly is a perfect
example. A Democrat, Mark Blanchfield, is challenging the Republican
incumbent, George Amedore, in the Assembly district that includes the
upstate New York city of Schenectady. Last month, Mr. Blanchfield
released television and radio advertisements that included a clip from
a video interview with The Albany Business Review in which Assemblyman
Amedore said, “I don’t look at the Assembly position as a job.”

Mr. Amedore complained that the ads took his remark out of context,
and the newspaper’s lawyers sent Mr. Blanchfield letters calling the
ads “an infringement of our client’s exclusive copyright
rights” (redundancy in the original), and threatening Mr. Blanchfield
if he didn’t cease using the material. Never mind that Mr.
Blanchfield’s use couldn’t possibly have harmed the financial interest
of The Albany Business Review. Whatever the newspaper’s motive, the
result is the censorship of Mr. Blanchfield’s campaign.

This problem isn’t limited to New York Assembly races. It has directly
affected the presidential campaigns. Last year, Fox News ordered John
McCain to stop using a clip of himself at a Fox News-moderated debate.
Last month, Warner Music Group demanded YouTube remove an amateur
video attacking Barack Obama that included its music, while NBC asked
the Obama campaign to pull an ad that included some NBC News video
with Tom Brokaw and Keith Olbermann. No doubt, these corporations are
simply trying to avoid controversy or embarrassment, but by claiming
infringement, they are effectively censoring political speech.

Senator McCain has taken a lead in responding to this copyright
extremism. In a letter addressed to YouTube last week, the McCain
campaign rightly criticized the Web site’s decision to remove work
that is “clearly privileged under the fair use doctrine” of copyright
law and called upon YouTube to be more protective of political speech
by conducting a more extensive review of material before it gets taken
down.

Copyright law has become a political weapon because of a statute
passed a decade ago: the Digital Millennium Copyright Act. That law
tells carriers like YouTube that unless they quickly remove material
posted by users that is alleged to infringe copyright, they themselves
could be liable for the infringement. Understandably, YouTube and
others have become quite vigilant in removing allegedly infringing
content. Indeed, the Web site has gone beyond the requirements of the
law and has begun to shut down the accounts of people alleged to have
violated copyright just three times.

The digital copyright act gives the alleged infringer an opportunity
to demand that the content be restored. But in the height of a
political campaign, even a few hours of downtime can be the difference
between effective and ineffective. The law thus creates a perfect
mechanism to censor political speech during the only time it could
matter. Recognizing this, campaigns and their allies are beginning to
exploit this weapon.

The answer to this problem is not to abolish or ignore copyright.
Instead, the law should be revised, bringing focus to the contexts in
which its important economic incentives are needed, and removing it
from contexts where it isn’t.

After all, a 95-year copyright on “Wall-E” may encourage Pixar to make
innovative movies, but we can be confident our presidential candidates
don’t require any first-to-the-market advantages before they agree to
debate, nor is there a need to protect their answers as though they
were record albums or new technologies. This is why both Senators
McCain and Obama joined in a campaign to persuade the networks to make
the raw feed from their debates available free of any copyright
restrictions.

What content owners need to recognize is that in the long run, it’s
unwise to ask for a definition of “fair use” in the middle of a
presidential campaign. Judges are very unlikely to find copyright
infringement in a political ad, and a law of “fair use” expanded to
allow such uses could well weaken the legitimate claims of musicians
and Hollywood studios.

It would be far better if copyright law were narrowed to those
contexts in which it serves its essential creative function —
encouraging innovation and ensuring that artists get paid for their
work — and left alone the battles of what criticisms candidates for
office, and their supporters, are allowed to make.

Lawrence Lessig, a law professor at Stanford, is the author of “Remix:
Making Art and Commerce Thrive in the Hybrid Economy.”

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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


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