The DMCA vs. Political Speech

from the shall-make-no-law dept

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.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    John Doe, Oct 7th, 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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  2.  
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    Dark Helmet (profile), Oct 7th, 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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  3.  
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    Anonymous Coward, Oct 7th, 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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  4.  
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    Anonymous Coward, Oct 7th, 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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  5.  
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    John Doe, Oct 7th, 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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  6.  
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    Ron Rezendes (profile), Oct 7th, 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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  7.  
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    Anonymous Coward, Oct 7th, 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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  8.  
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    Anonymous Coward, Oct 7th, 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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  9.  
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    Mike Masnick (profile), Oct 7th, 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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  10.  
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    ChurchHatesTucker (profile), Oct 7th, 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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  11.  
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    TPBer, Oct 7th, 2010 @ 12:19pm

    Re: Who is the NFL protecting?

    That sounds like the country of Jerry Jones.

     

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  12.  
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    The Mighty Buzzard (profile), Oct 7th, 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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  13.  
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    Anonymous Coward, Oct 7th, 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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  14.  
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    Anonymous Coward, Oct 7th, 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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  15.  
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    Anonymous Coward, Oct 7th, 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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  16.  
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    Anonymous Coward, Oct 7th, 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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  17.  
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    Any Mouse, Oct 7th, 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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  18.  
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    ChurchHatesTucker (profile), Oct 7th, 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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  19.  
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    Transbot9, Oct 8th, 2010 @ 7:19am

    Woot! Linkback!

     

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  20.  
    identicon
    Transbot9, Oct 8th, 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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