Presidential Candidates Brawl out their Campaigns through the DMCA

It would appear analysts were correct during the Arab Spring in guessing that the Internet would be the new battleground for politicians. In recent events, American presidential candidate Mitt Romney had a campaign video of his taken down from YouTube. This has raised concerns in the United States with regard to the right to free speech, a right held in very high esteem on that side of the Atlantic.

For the last week, President Obama and former Massachusetts Governor Mitt Romney have been trading arguments in respect to Romney’s role in the layoffs initiated by Bain Capital ten years ago. Obama’s latest political jab consisted in an advertisement featuring Mitt Romney singing “America the Beautiful” over images of shuttered American factories. Romney’s camp responded to this swiftly and aggressively by posting their own advert on YouTube showing President Obama singing Al Green’s “Let’s Stay Together” juxtaposed with headlines about Obama rewarding lobbyists and campaign donors.
Unfortunately, if one attempted to watch this advert now, they will be greeted by the following message:
“This video is no longer available due to a copyright claim by BMG_Rights_Management”
BMG is a multi-national company dedicated to the enforcement of musician’s rights. They act as both a royalty collection service and legal representation in pursuance of the rights attached to copyright of Music. Romney’s advert using the track by Al Green can be said to fall well within the threshold of fair use of copyrighted material even under US law. This opinion bases itself on the idea that Obama’s singing is a core part of the advert’s message and US copyright law explicitly mentions commentary and criticism as a justification for fair use. It has also been commented that the use of the song, taken in its proper context, would have no moral repercussions on Al Green’s reputation or the success of his music. This has raised concerns with respect to the ‘shoot first, ask questions later’ approach taken by Online Service Providers when addressing Digital Millennium Copyright Act (DMCA) claims.
The takedown process established by the DMCA used by BMG has been known to be clinical and efficient in its scope. This has ensured that claims are dealt with very quickly, which was bad news for Romney’s camp. Although it is possible to file a counter claim, sites like YouTube still require a waiting period of ‘a minimum of 10 days’ before restoring the content. This can be precarious in a political campaign where 10 days is an eternity insofar as news is concerned.
Theoretically, a counter-claim to a takedown notice is possible along with penalties for bad faith claims, however time has proven that this system under the DMCA has no bite to it. In 2010 a federal judge sided with Stephanie Lenz, a mother whose video of her toddler dancing to a song by ‘Prince’ was taken down by the “Universal Music Group” which controlled the rights to the song. The problem in this regard is that the counter claimant has the burden of proving the original claim was made in bad faith. This was difficult for Lenz who had to prove a big company like Universal had acted in bad faith.
The result is that there is little to stop copyright holders from overzealous use of their website takedown powers under DMCA, a position which may need some re-thinking.
For further assistance regarding Copyright Law and Technology, Media and Communications Law, or the taking down of any website content that is in breach of your rights kindly contact GVZH Advocates here.
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