Monday, July 5, 2010

Nevada Senate candidate objects to opponent's posting of earlier version of web site

Talking Points Memo reports on a campaign IP kerfuffle in Nevada, where Senate Majority Leader Harry Reid (D) is fending off a challenge from Sharron Angle (R). The Reid campaign apparently posted a cached copy of an earlier version of Angle's web site, in an effort to show that she had "toned down her right-wing rhetoric" in the current version. A cease-and-desist letter from the Angle campaign's attorney followed.

The TPM story suggests that the Angle campaign was simply complaining about Reid's use of its copyrighted material. If that were so, I would think the copyright claim would be weak; the fair use and First Amendment arguments in favor of allowing a political candidate to post his opponents' campaign material in order to comment on it would be strong. See, e.g., Keep Thomson Governor Committee v. Citizens for Gallen Committee, 457 F. Supp. 957 (D.N.H. 1978) (rejecting copyright claim in campaign context; emphasizing that "The First Amendment affords the broadest protection to such political expression in order to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.").

But it's clear from the C&D letter that the Angle campaign is not actually making a copyright claim. Rather, they are concerned that the Reid campaign, by posting the former Angle web site, which included a form for supporters to submit their names and email addresses, may have been harvesting those on their own, and misleading Angle supporters who genuinely wanted to submit their names to her campaign -- not Reid's. Indeed, the actual demand in the C&D letter is confined to this point:
[W]e demand that the Reid campaign immediately cease its nefarious actions of requesting and obtaining the names, email addresses, and zip codes under false pretenses from unsuspecting supporters of his opponent, Sharron Angle.
According to TPM, the Reid campaign acquiesced and took down the site. It's one thing to post an opponent's words to comment on or criticize them; I would support the Reid campaign's right to do just that. But it's quite another to trick supporters of one candidate into giving their contact info to the other, and it appears Angle had every right to complain about that aspect of Reid's tactics.

Update: Several people have pointed out to me that the C&D letter includes some broad language about the Reid campaign's use of copyrighted material. That's true, but I think that in context, what Angle is really complaining about is the use of that copyrighted material to mislead her supporters into submitting their contact info to the wrong site.


  1. To be fair to TPM, the Angle C&D letter does make some very broad copyright claims. In addition to the specific demand that the Reid campaign cease and desist from harvesting contact information of would-be Angle supporters, the letter states:

    "The design and information appearing on your client's site are copyrighted by my client and its vendor(s) who created the original campaign website


    Please consider this a notice to your client to immediately cease and desist the misappropriation of my client’s name, image and multiple copyrighted materials.


    we demand that your client remove the fake website from the internet…"

  2. Actually, Ben, I *do* think the Angle campaign is making a copyright claim. "Please consider this a notice to your client to immediately cease and desist the misappropriation of my client's name, image, and multiple copyrighted materials." That's pretty clear. I agree with you on the merits of the copyright claim, and on the risk of confusing users into providing contact information, but I think your post underplays the use of the copyright C&D a bit.

  3. So does she still have amateurs working for her, or did this bit of stupid come from the guys the GOP put on her campaign team?

  4. electronic forms have the destination (either an application to process the info or an email to send it to) for the submitted info embedded within the form HTML. unless team Reid edited the form html, the info would still go to the original specified source and not the Reid campaign. if the link was local (eg didn't specify the domain) then it's likely that submissions would generate an error and the data would be lost. only if the link was local and Reid had an application with the same exact name, in the same exact sub-directory would it go to the Reid campaign. it's impossible to say without seeing the html but i find it unlikely to be the case.

    lost in thought

  5. I have to agree with Derek and the first poster. The first three substantive paragraphs of the C&D refer to copyright, not harvesting of supporters' names: (1) the mirror site "misappropriates copyrighted materials and information," (2)"[t]he design and information appearing on your client's site are copyrighted by my client," and (3) "your client has clearly misappropriated my client's copyrighted materials." Three more paragraphs down comes "Please consider this a notice to your client to immediately cease and desist the misappropriation of my client’s name, image and multiple copyrighted materials."

    It's not until the fourth and fifth paragraphs that there is any mention of capturing names of Angle supporters. Finally, the C&D in fact does "demand" that Reid "remove the fake website from the internet." Seems a bit of a stretch, then, to say the letter's not making a copyright claim.

    I also suspect "lost in thought" is right that, unless Reid's folks actively rewrote the submission code, no names or other info would go to Reid from the mirrored site.

  6. "lost in thought" makes an excellent point. I understand why the Angle campaign would be worried about the possibility that the site could harvest contact information for would-be Angle supporters, but I would be absolutely shocked if the Reid campaign gained a single user's contact information through that site. It would almost certainly have required the Reid campaign to alter the html in order to redirect the form to a non-Angle e-mail address or database. It was almost certainly a mere oversight by the Reid campaign.


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