We recently wrote about News Corp.'s slightly odd decision to sue a political candidate, Robin Carnahan, who used a clip from Fox News (of Chris Wallace attacking Carnhan's opponent, Roy Blunt). Carnahan has hit back, and beyond just arguing the obvious fair use defense (which seems like it should win), Carnahan points out that, first, Fox failed to register the copyright on the 2006 program until after it filed the lawsuit. As has been discussed here many times, while you get copyright automatically, if you want to sue over it, you generally have to have registered the copyright (the law is a little hazy here). Even worse, Carnahan's lawyers point out that a large segment of the clip that was used actually comes from C-SPAN, whose works are automatically put into the public domain. In other words, Carnahan's lawyers appear to be accusing Fox of copyfraud, in claiming copyright over public domain materials. If this gets anywhere, Fox and News Corp. may end up regretting filing this lawsuit quite a bit...
During the Presidential campaign in 2008, we noted that CBS had sent a takedown notice for a John McCain ad that included a snippet of the CBS Evening News with Katie Couric. We noted that this seemed silly and a pretty clear case of fair use. While not much more ever happened in that case, in a similar situation, we now have Fox News and one of its hosts, Chris Wallace, suing Missouri Senate candidate Robin Carnahan, claiming copyright violations, invasion of privacy and misappropriation of likeness -- saying that the ad implies that Wallace endorses Carnahan. Fox has also sent takedown letters to YouTube for hosting the video, though others appear to have it (for the time being).
The ad itself is pretty straightforward. It's a clip of Chris Wallace asking a question to Carnahan's opponent in the race, Roy Blunt from a few years ago. It's basically Wallace saying the following:
"You just said a moment ago that you have to show that you're the party of reform but some question whether you are the man to do that. In 2002, you tried to insert language into the Homeland Security Act to help Phillip Morris tobacco [company] while you were dating that company's lobbyist. And your campaign committee's paid $485,000 to a firm linked to lobbyist Jack Abramoff. Are you the one to clean up the house?"
And then some tag line against Blunt. It never shows Blunt's response. It's difficult to see how anything about this lawsuit makes sense. First of all, the copyright claim is pretty weak. While most of the commercial is the clip, it seems like it's quite likely this would still qualify for fair use. The idea that this implies Wallace endorsed Carnahan is a huge stretch. Nothing in the ad suggests he did at all. It's a factual representation of what was said. Fox's claim that this creates financial harm doesn't make much sense. Even if (again, a huge stretch) people believe that Wallace was endorsing Carnahan, that's got nothing to do with the financial loss from the clip itself. Case law is pretty clear that the financial loss needed in a fair use analysis involves the financial loss over what the clip itself could be licensed for -- not any ancillary "costs." And, in the very same complaint, Fox makes it clear that it wouldn't license this clip even if the campaign had asked. Thus it seems to admit that the "financial loss" is nothing.
But, really, the bigger issue, is that in suing and sending takedowns over this video, all Fox has done is draw significantly more attention to the story itself and the negative impression of Blunt. If I had to guess, I'd say that Carnahan has never been so happy to be sued. It's tons of free advertising on an attack ad on her opponent.
And, of course, if the video is found to be fair use -- as I would bet it would be -- we'll have yet another example of how the DMCA's takedown process is a clear violation of free speech. Even if the video is eventually allowed back online due to a counter-notice, copyright law was being used to silence political speech in the middle of a campaign.
