Thursday, October 7, 2010

Copyright battle in Ohio Gov. race over use of clip to expose 'steelworker' as actor

Here's a very interesting copyright battle going on in the Ohio governor's race. As described by EFF's Kurt Opsahl:

A couple of days ago, Congressman John Kasich put out a commercial that featured a man dressed as a steelworker discussing Governor Ted Strickland’s record. It turns out that the steelworker depicted in the commercial wasn't an actual steelworker, but paid actor Chip Redden.

In response, the Ohio Democratic Party promptly published a YouTube video capitalizing on this, illustrating its point with short clips from Redden's acting career. One of the clips came from a film by Arginate Studios, LLC, which then used the DMCA (Digital Millennium Copyright Act) to send a take down demand to YouTube. YouTube removed the video. Under the DMCA, the political video would be unavailable on YouTube for at least 10 days (a significant portion of the time remaining before the election), though the video remains available on Vimeo.

Given the facts as I know them, I'm with EFF on this one. The Ohio Democratic Party's use of clip was strictly non-commercial: to make a political point about Kasich's ad. And the clips they used were very short -- just long enough to demonstrate that the "steelworker" really wasn't. Arginate's action will have the unfortunate effect of keeping the video off YouTube at the height of the campaign. YouTube can re-post the video at any time; yes, it would lose the DMCA safe harbor as to this video, but it doesn't need any safe harbor given that the Ohio Democratic Party's inclusion of the clip is almost certainly a non-infringing fair use. YouTube has taken such a step before; it should do so again.

Update: as of the morning of October 8, the video has been restored to YouTube. I'll tryto find out whether Arginate withdrew its notice, or whether YouTube re-posted it on its own.

Further update: Google Senior Copyright Counsel Fred von Lohmann confirmed to me that YouTube did re-post the video on its own.


  1. I don't understand in what context YouTube "should" put the video back up. YouTube is a commercial entity, and not a commercial entity that specializes in journalism. To whom do they owe some duty which obliges them to risk legal liability, and what is the duty that is owed? Who will compensate them for the expenses of defending themselves, and the cost if they are found to be liable? You?

  2. @StMarc:

    I did not say that YouTube has any legal duty to re-post the video. They don't. But it would be the right thing to do. And because this is such a clear case of fair use, the risk of legal liability is exceedingly low. In the extremely unlikely event they would have to defend themselves in a lawsuit, I'm sure they could afford it.

  3. The YouTube link works now--I guess they put it back up?

  4. I think it's possibly the position of the filmmakers that this went beyond identifying the person as an actor and created an unauthorized satire... I think satires are supposed to be 'more likely' licensed because they attack something other than the work... the actor is not the work... the film is... this satire attacks a political candidate.... so its reasonable to expect that a business would sell something if they were offered money for a use that didn't attack them. No offer was ever made.

    My understanding is that the purpose of parody and satire are to focus on a cultural reference point. Even though the actor appeared in noteworthy projects such as 'Lost' and Safe Auto commercials... the ODP chose all of the used clips from micro budget video it's not something anyone can culturally associate with.

    My understanding is that a 9th Circuit interpretation protects satires to a much lesser degree because they are supposed to be able to stand on their own without the inclusion of copyrighted material. I don't think this could stand on it's own without the lifted material.

    Then of course there's the cultural benefit. I would find it hard to believe that using the clips to form insults is going to be seen as culturally beneficial.

    Also possibly Publicity Rights ... the ad promotes it could be argued that dot-coms are commercial in nature... like instead of .org I can't really investigate because the site is offline.

  5. I have no data as to how many petitions for cert do not have a response filed (the only one instance I recall was Bonito v. Thundercraft). Might you have any such data?

  6. I didn't ask about legal duties, I asked about duties period. To whom do they owe this duty? What is the duty they owe, and what is the source of the obligation? You think it's the "right" thing to do, and they "can afford" any potential legal repercussions. But I ask again, why should they risk them at all?

    You may think I am being obnoxious, and Eris knows I am certainly good at it. But in this case, I'm honestly not. I'm trying to figure out why you think they have this obligation, to whom you think they owe it, and what you think it requires of them. As I said, YouTube is not a journalistic entity. They do not get "use of the public airwaves" like a broadcaster. What have they been given which requires them to accept obligations in return?

  7. This illustrates the fundamental problem with the DMCA take down provisions - a 'shoot first' system with no redress for the consequences until later.

  8. Just out of curiosity, your view on:

    It is a new ad by Alan Grayson that mimics the opening of each "The Sopranos" episode, the score being substantially the same, the lyrics changed, and the video changed from NJ to FL.

    While it is certainly clever and well done (at least the video portion...certainly not the lyrics), I have to wonder if there is some outer limit for "fair use" in the context of political ads.

  9. StMarc: If YouTube wants to claim "common carrier" safe harbor, then it needs to follow its own terms of service and make fully accessible all content which it isn't specifically enjoined from displaying.

  10. @St Marc

    They don't have any *duty* (legal or otherwise) to put the clip back up. At least not beyond the basic social duty we all have to do what we think is right. We'll all have somewhat varying opinions on what falls under that umbrella, but we can certainly express an opinions of what we think should be done. In this particular case, it appears that YouTube agreed with Ben (whether they ever saw his post or not).

  11. I thought that under the DMCA, the carier was allowed to leave the impugned clip up long enough for the accused poster to respond with a counter notice (which has the effect of indemnifying the carrier).

    I think the problem, right now, is that too few accused infringers make use of counter-notices.

  12. @Stephen Samuel:

    Under DMCA Section 512(c)(1)(C), the host must "respond[] expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity" in order to maintain the safe harbor. There is no requirement that the host wait until the person who posted the material has time to send a counter-notice.


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