The DMCA vs. Political Speech

from the shall-make-no-law dept

Thu, Oct 7th 2010 10:34am — Mike Masnick

Transbot9 recently alerted us to the news that the NFL had complained about Senator Russ Feingold's use of an NFL clip in his latest TV commercial:

Apparently Feingold folded like a cheap suit and quickly re-edited the commercial to heed the NFL's special interest. Ironically, the whole commercial is about Feingold's willingness to stand up to corporate special interests. Yeah. Nice one.

Anyway, the timing is good, on this. While it doesn't appear that any DMCA takedown was actually issued by the NFL against Feingold's commercial, we certainly have been hearing a lot of stories about DMCA takedowns on political commercials, where the content used is almost certainly fair use. The Center for Democracy and Technology (CDT) has just released a report looking at numerous DMCA takedowns of such political commercials, highlighting how in almost every case the use was almost certainly fair. The report reminds people that the whole DMCA takedown process -- especially in political contexts -- appears to be yet another example of how the DMCA violates the First Amendment with its takedown provisions.

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Filed Under: dmca, free speech, politics

20 Comments

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John Doe, 7 Oct 2010 @ 10:53am

Awesome, hope more takedown notices get sent...
If they keep hitting the elected officials with bogus DMCA notices, then maybe the elected officials will smarten up to the abuse and put a stop to it.

That is probably hoping for too much though.
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Dark Helmet (profile), 7 Oct 2010 @ 10:56am

Re: Awesome, hope more takedown notices get sent...
Way too much hoping.

More likely they'll say something along the lines of, "Wait...you mean to tell me we have laws on the books that can limit free speech? No shit! This is FANTASTIC! I can't wait to use this DM-thingy myself!"
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Anonymous Coward, 7 Oct 2010 @ 10:58am

Who is the NFL protecting?
Well, the NFL is full of Republicans. I visited an owner of a NFL team for a little schindig a while back. He had a 50,000 square foot house and a 1/2 mile long driveway that was made of marble.

It's not that it's a bad thing. I feel that if you're successful, you deserve it. But then, I immediately thought about the taxes that citizens paid to build his stadium.
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Anonymous Coward, 7 Oct 2010 @ 10:58am

They asked him.

He did it.

End of story.

I must say I never realized that virtually everything associated with copyright law violates the 1st Amendment.

Seriously, don't you think you are being a tad overinclusive?

BTW, political ads using the music or other content of a rights holder in the background are not easily dismissed because of Fair Use. There are other laws that also come into play, with copyright being just one of them.
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John Doe, 7 Oct 2010 @ 10:59am

Re: Who is the NFL protecting?
You do realize that Democrats are just as rich as the Republicans don't you?
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Ron Rezendes (profile), 7 Oct 2010 @ 11:10am

Re:
"I must say I never realized that virtually everything associated with copyright law violates the 1st Amendment."

This is your primary logic fail - you just don't see it, my condolences for your loss of basic comprehension of the government granted monopoly that is copyright.

"Seriously, don't you think you are being a tad overinclusive?"

Seriously, don't you think copyright laws are being a tad overinclusive?

FTFY
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Anonymous Coward, 7 Oct 2010 @ 11:19am

Re: Re: Who is the NFL protecting?
"You do realize that Democrats are just as rich as the Republicans don't you?"

Oh sure. All I'm saying is that the money is obviously in licensing, and NFL is an entertainment company in the front and a hugely successful licensing company in the back. Many people don't understand how big/successful the licensing side is.

It's marble driveways and 900,000 sq foot houses successful. So of course they are going to prevent brand dilution, challenge fair use & political usage at any turn to continue growth of licensing revenue.

You must be mad to think they won't!
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Anonymous Coward, 7 Oct 2010 @ 11:45am

Re: Re:
"This is your primary logic fail - you just don't see it, my condolences for your loss of basic comprehension of the government granted monopoly that is copyright."

Perhaps your comment is better directed to the SCOTUS. In your transmittal to the court be sure to ask them why they keep publishing opinions that do not conform to your views regarding constitutional law.
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Mike Masnick (profile), 7 Oct 2010 @ 11:47am

Re:
They asked him.

He did it.

End of story.

Ah, our favorite IP lawyer stops by to act as editor and tell me what is and what is not a story.

It's not the end of the story, which is why I wrote about it. You *want* it to be the end of the story, because you don't want us to point out how copyright gets in the way of the First Amendment, so your best retort is "shhh, don't talk about it." Fitting. The best response to someone pointing out others' speech being stifled is to tell them to stifle their own speech.

I must say I never realized that virtually everything associated with copyright law violates the 1st Amendment.

I'm glad we can help educate you.
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ChurchHatesTucker (profile), 7 Oct 2010 @ 11:50am

Re: Re: Awesome, hope more takedown notices get sent...
Yeah, they'll learn to exempt "political speech (by registered parties)" and ban the rest.
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TPBer, 7 Oct 2010 @ 12:19pm

Re: Who is the NFL protecting?
That sounds like the country of Jerry Jones.
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The Mighty Buzzard (profile), 7 Oct 2010 @ 12:25pm

Re: Who is the NFL protecting?
The player doesn't care about the stadium. He gets paid the same if he plays in a giant dome or a highschool field.

The city/state paid for the stadium because of the metric assload of cash they hope to garner from means tangential to the use of the new stadium. In theory this means they can tax you less but in practice it generally only means that they don't have to tax you more to have more money to waste.
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Anonymous Coward, 7 Oct 2010 @ 12:50pm

Re: Re:
You have posted several articles in which you talk about how resort to litigation is more often than not unnecessary.

While this does not necessarily equate with your "social mores" articles, it does represent how best to handle things, by talking and cooperating.

Since it appears that a DMCA take down is not pertinent here, then it seems to me that the remainder or the article is merely gratuitous.

Hence, they asked, he agreed, end of story.
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Anonymous Coward, 7 Oct 2010 @ 1:09pm

Re: Re: Re:
Ah yes, demanding that someone take down their video or edit it for no good reason is so cooperative.
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Anonymous Coward, 7 Oct 2010 @ 1:16pm

And the "no good reason" is?

Since the only thing removed was one specific clip (Moss "mooning" the crowd), it does not seem credible that the NFL complained about the use of all the clips.
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Anonymous Coward, 7 Oct 2010 @ 2:20pm

Re:
What good reason would the NFL have for whining about a brief clip in a random political ad?

Oh, right, none. Sorry that you are so confused.
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Any Mouse, 7 Oct 2010 @ 2:46pm

Re: Re: Re:
You missed something in the article, here, I think:

'Apparently Feingold folded like a cheap suit and quickly re-edited the commercial to heed the NFL's special interest. Ironically, the whole commercial is about Feingold's willingness to stand up to corporate special interests.'

Thus, he says he's willing to stand up to corporations, then does NOT stand up to one where he could probably get Fair Use exceptions. Seems a pretty damn important point to, say, the VOTERS?
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ChurchHatesTucker (profile), 7 Oct 2010 @ 6:31pm

Re: Re: Who is the NFL protecting?
"The player doesn't care about the stadium. He gets paid the same if he plays in a giant dome or a highschool field."

You haven't been paying attention to the NFL/Players Assoc. negotiations, have you? They players are literally being asked to pay part of the costs of the stadiums.
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Transbot9, 8 Oct 2010 @ 7:19am

Woot! Linkback!
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Transbot9, 8 Oct 2010 @ 7:24am

Whoops, bumped the ENTER
Other than the McCain Feingold Campaign Finance Reform bill that got nerfed because it limited free speech, I'm not sure how friendly or unfriendly Feingold has voted on IP laws.

I can see the NFL not wanting to appear as endorsing a canadate, though, so they'd have to say something.
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