Friday, April 30, 2010

Can a candidate post an entire news story to YouTube?

The reelection campaign of Senate Majority Leader Harry Reid (D-NV) has posted to its official YouTube channel an entire local news story reporting on his GOP opponent Sue Lowden's "chicken for checkups" flap:

The video, which lasts 3 minutes, 15 seconds, is simply an entire news story from KTVN, the CBS affiliate in Reno; the the campaign hasn't added anything or altered the video in any way. The purpose of posting the video is crystal clear: to keep Lowden's gaffe in the news, in the hopes it sinks her campaign. I think any fair use argument would be weak. (I have no idea whether KTVN objects to this use.)

The point of this post isn't to single out Reid. I'm sure many other campaigns, of both parties, are engaging in similar practices. My point is simply that many campaigns and political observers are likely committing copyright infringement in their web video tactics, and there are bound to be numerous DMCA takedown imbroglios -- and perhaps even a few copyright lawsuits -- over the course of the cycle. Some of these takedowns will be legitimate; I'm sure others won't. Fair use should be at its height in the course of a political campaign. I would suggest campaigns familiarize themselves with at least the basics of copyright before they start letting staffers post video to the web. And I'd urge news organizations to post clear guidelines as to what they consider acceptable uses of their material. There are endlessly fascinating fair use and First Amendment arguments here, but it's better for both sides to have a good sense of the rules of the road, so that they can concentrate, respectively, on campaigning or reporting, rather than litigating.


  1. So in order to report and comment on the fact that Reid's campaign posted an entire unaltered 3:15 news story on its YouTube channel as a way to comment on Lowden's gaffe, you in the entire unaltered 3:15 news story on your own site.

    If Reid's use isn't fair use, then you too are guilty of copyright infringement, yes? Or are you honestly trying to suggest that, in terms of fair use analysis, a Senator who uses a news story to comment on an opponents behavior is somehow different than your using the same story to comment on issues of copyright law??

    Honestly Ben, have you no respect for the property of news outlets??

  2. I'm not sure whether the comment above was actually meant to be taken seriously. But just in case it was: I did not "post" the video; I linked to it. The distinction is legally significant. See Perfect 10 v., 508 F.3d 1146 (9th Cir. 2007) (adopting "server test"). And even absent that distinction, I'm confident my use was fair. I embedded the video purely for purposes of legal commentary/analysis, and in fact I surrounded the video with it. Reid's campaign appears to have done no such thing; it merely posted it so that more people would watch it and form a negative opinion of Lowden.

  3. I did not "post" the video; I linked to it.

    This would be a "link" to the video:

    What you did was "post" it such that the video is embedded on your site without having to go to either Youtube or the news creator's site.

    Trying to confuse the issue with the factually intensive "Perfect 10" case which involved thumbnail copies of images and frames around 3rd party sites doesn't get you off the hook on a charge of hypocrisy. But I invite everyone to read the decision for themselves and decide who is right here. I will LINK to the case (not post it) here:

    Reid posted the news video along with his comment "Must see: In first televised interview addressing Chickens for Checkups debacle, Lowden refuses to disavow bartering comments, not sure if issue has spiraled out of control." He is letting the video itself do most of the talking for his own commentary suggesting that people shouldn't vote for his opponent. So are you suggesting that if he merely added a two short extra paragraphs on why his his opponent is unfit for office and "surrounded the video with it" then you would agree it would then be fair use?

    When you claim that "Fair use should be at its height in the course of a political campaign" and then go on to suggest that Reid's campaign use of the video is in infringement while your own use is not - it all just boggles the mind.

    But hey, I'll be happy to let people read your own comments, plus whatever case law you throw out there, and have them decide if my comments are to be "taken seriously" or not.

  4. Embedding a YouTube video is a form of linking, and Perfect 10 v. addressed a closely analogous situation. No need to trust me on this one -- read the case, and see what my friends at EFF have to say on this topic:

    "[I]t's important to understand what an embedded YouTube video is -- it's a link. Just a link. Nothing but a copy of the YouTube video is being stored on your server (only the HTML code for the embed). The video stays on, and is streamed from, YouTube's servers.

    "That makes the embedded YouTube video essentially indistinguishable from the in-line image links that are used all over the Web, including in Google's Image Search. In the recent Perfect 10 v. Amazon ruling, the Ninth Circuit made it very clear that where in-line links are concerned, there is absolutely no direct copyright infringement liability. So, for purposes of direct infringement, the answer to one question will generally resolve the issue: where is the copy hosted?"

    Yes, I believe fair use is at its height in a political campaign. But that does not mean that every use of third party material in the context of a political campaign is fair.

  5. Sorry Justin, I agree with Ben. And the YouTube posting is clear copyright infringement (the news station has copyright to that video). And what Ben has done above is clearly fair use in commentary.

    Either KTVN gave permission for the upload (unlikely) or they just aren't aware of it and haven't given notice to YouTube to take it down.

    As for the point of your post, I agree 100%. The campaigns should know better ...

  6. A number of responses - [Part 1 of 2]

    1. Even if Perfect 10 applies, both it and the EFF agree that you could still be liable for contributory liability. If you want to try and lawyer your way out of your hypocrisy by arguing no "direct infringement" - be my guest. Every reader of this site will know what you are up to though.

    While I obviously endorse the EFF's reasoning and larger mission, they are clearly engaging in ADVOCACY on the position that courts should take (which I support), not an objective legal prediction of how the question would actually be resolved if litigated.

    2. Many other copyright authorities would clearly disagree with your self-serving analysis of Perfect 10.

    Eric Goldman of the Tech. & Law Blog on the Perfect 10 case -
    "The opinion is highly technical and rather fact-specific, in many cases turning on the burden of proof/production in a preliminary injunction motion and whether sufficient factual evidence was introduced at this stage in the litigation. As a result, I don't think the opinion will have a lot of immediate impact as precedent because it can be read as limited to very specific facts. This also makes it a lousy teaching case (a little disappointing, because I was hoping we could replace the hard-to-teach district court ruling with a cleaner Ninth Circuit opinion--no such luck!)."

    IP attorney Denise Howell (as quoted on the BlogHerald -

    "According to intellectual property attorney Denise Howell, the author of Lawgarithms and the host of This Week in Law, the problem with embedding infringing YouTube clips is fairly straightforward.

    'Any time you incorporate a copyrighted work into a site without the rightsholders’ consent, you’re potentially liable,' said Howell, 'It doesn’t matter where it’s hosted.'

    In short, since your site or blog is gaining benefit from another’s copyrighted material without permission, you can be held liable for it. It does not matter if the content is hosted elsewhere, posted by someone else.

    Worse still, according to Howell, it does not matter if the person doing the embedding was aware of the infringement. 'Innocent or ignorant infringement is just as actionable as the intentional variety,' said Howell. The only difference is the amount the plaintiff would be able to win in statutory damages should the case go to court. However, even in cases of innocent infringement, that amount can be as high as $30,000 per work infringed.

    I guess Denise didn't read Perfect 10 the way you did.

    Which makes sense. Web users experience the news video the same way at both sites. They don't inherently know if one is "embedded" at one site versus being "uploaded". If you really think Perfect 10's holding is broad enough to save you on that - good luck. There is no denying that the embedded video issue has not been answered in court - not even by the Perfect 10 decision.

    [End part 1 of 2]

  7. [Part 2 of 2]
    When it comes to fair use issues, it is easy to try and hide self-serving advocacy behind a false cloak of "legal analysis". That seems to be what you are doing here.

    Even though I am not a Republican partisan (as I presume you are, given your work with the McCain campaign), I find Harry Reid to be a distasteful personality whom I hope to see go ASAP. But that doesn't justify trying to use the specter of copyright infringement as a partisan weapon against one side while arguing "fair use" on the other side.

    You write "Yes, I believe fair use is at its height in a political campaign. But that does not mean that every use of third party material in the context of a political campaign is fair." Fair enough. But it still laughable on its face to suggest that Reid's use of the video as a clear way of criticizing his opponent is somehow categorically different than your own use of the video to criticize Reid's campaign here.

    Again, if you think that having two paragraphs of commentary "around" the video somehow clearly separates your use from Reid's single paragraph of commentary below the video, I just don't know what to say to you.

    I would naturally argue that both uses (yours and Reid's) should be considered fair use. Though naturally, I recognize there are plenty of court examples which at least give encouraging arguments to the other side. But the weakest position of all is to suggest that Reid's use is "clearly" infringement while your own use is "clearly" non-infringement.

    But here is my challenge - if you are so certain of your position, please respond and clarify in a separate post on your blog where more people will come across it (rather than a another response in the comment section here).

    I only ask that in the new response post, you link both to Reid's site here:

    and your own original post here:

    After that, you can criticize my analysis all you want and tell people how obviously ignorant I am of these fair use distinctions that will know doubt be clear to everyone who compares both sites. You can show people how much of this legal area you know, and it will be a great teaching moment. I will not take offense by your singling me out with this new post. I encourage it, provided that you characterize my own arguments in a fair manner (or simply link to my comments directly without further embellishment from you).

    I am confident that people will look at the two uses of the video in each context, read your own analysis/justifications, and draw their own proper conclusions as to both your objectivity and the sanity of how fair use law is applied.

    By your own reasoning in your first comment, people will be confused if my arguments are even "meant to be taken seriously", so I'm sure you have nothing to fear. Invite other IP attorneys to weigh in and criticize my ridiculous views. My silliness and legal ignorance will be on display for all to see, and I welcome it in this instance.

  8. Mr. Levine:

    Clearly you're impassioned about the subject matter. I do think, however, that your passion is resulting in an argument that is not very logically sound.

    You seem to conclude that Reid's use of the entire news segment is fair because he added one sentence beneath it and let the video do the talking in lieu of his own commentary.

    But is this really the case? Let's look at Reid's commentary and how it relates to the video. His commentary, which is one sentence (not one paragraph as claimed) says:

    "Must see: In first televised interview addressing Chickens for Checkups debacle, Lowden refuses to disavow bartering comments, not sure if issue has spiraled out of control"

    The segments of the video that directly correspond to any interview she gave occur from 1:30-1:32 and from 2:25-2:38. The rest of the video simply has nothing to do with an interview or her refusal to disavow bartering comments.

    To me, it is clear that the Reid campaign simply used the entire interview to attack a rival rather than spend the time and effort to excise the two small segments that supported their commentary. This kind of laziness is not contemplated by the fair use analysis.

    Even a quick analysis of the fair use factors don't seem to weigh in Reid's favor.
    1) Purpose & Character - it's not transformative because there's nothing added. It's duplicative. Worse yet, it's commercial use in that it attempts to enrich Reid's reputation at the expense of his opponent.
    2) Nature of the work - Debatable, but a news reporting clip probably lies closer to the heart of copyright protection than it lies outside of it.
    3) Amount taken - the entirety of the clip.
    4) market effect - given that nothing has been added to this clip, that it has been used in its entirety, it strains credulity to argue that it isn't a perfect substitute in the marketplace for this news segment.

    And before you go throwing around the allegation of contributory infringement, perhaps you should consider the definition (from A&M Records v Napster):

    "Traditionally, one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a contributory infringer." (internal quotations omitted)

    How is Ben's site doing that again?

    While we're on Ben and his site, I think you make the logical mistake of equating the two uses. Reid used the clip in its entirety to attack his opponent. Such a use is unsupported by his own commentary and the fair use factors.

    In Ben's case, his use of the entire clip (if it ever became an issue) was to illustrate an entirely different point - the copyright issues surrounding political campaigns. Therefore, the posting of the clip in its entirety is necessary to understanding the accompanying commentary, all of which relate to the behavior and actions of the Reid campaign. In that respect, Ben and his site's use of the clip certainly is more fair than that of Reid's campaign.

  9. I see that this is an older discussion, but would the video be fair use if Lowden would have posted it herself? What is the law regarding the posting of news clips that is a story about yourself or your company?


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.