In recent years television networks which air political campaign debates have attempted to enforce their copyright protection by denying the use of debate footage in subsequent campaign advertising. Although some campaigns have complied with network demands to omit the footage from campaign ads, others have relied upon a fair use or free speech argument to defy the networks and use the footage without permission. The success of this defense will vary drastically, depending upon the medium. Ads run on television are subject to traditional copyright law that requires the copyright holder to affirmatively assert a claim of copyright infringement. Although several networks have threatened legal action, no court has yet determined whether such ads are indeed a fair use of the copyrighted material. When political campaigns upload ads for viewing on the Internet through sites such as YouTube, the process set forth in the Digital Millennium Copyright Act (DMCA) gives the networks the ability to takedown allegedly infringing content almost immediately, without first showing that the material infringes upon an existing copyright. This use of the DMCA has the effect of chilling important political speech, especially in a rapid campaign cycle. This article analyzes this issue, showing first that the use of campaign debate footage is indeed a fair use, and then reviewing and critiquing various proposals for reform of the DMCA.
Part II of this article presents the factual backdrop upon which this issue must be analyzed. Part III discusses traditional copyright protection and the fair use exception. It also explores the intersection of copyright law and the important free speech issues these cases present. Part IV analyzes the fair use defense as applied to this situation and suggests the likely outcome, should such a case ever go to trial.1 Part V discusses the related topic of the DMCA as it applies to internet service providers (ISPs) such as YouTube and explains how a holding of fair use could have important implications for political speech on the Internet. It suggests that a holding in favor of making debate footage available for all candidates to use in political advertising is essential to ensuring full and fair debate of ideas and issues within the political process. Part VI concludes.
II. FACTUAL BACKGROUND
Early in the primary season of the 2008 U.S. presidential race, a bipartisan group, which later became known as the Open Debate Coalition,2 formed to push for the free, public use of televised presidential debate footage. The coalition urged both the Republican and Democratic national committees to require any networks that aired presidential debates to either put the debate footage into the public domain, or at least allow its unrestrained use.3 Democratic candidates John Edwards and Barack Obama, among various others, supported the movement.4
Most major news network organizations agreed,5 except for Fox News, which refused and denied permission to at least two candidates, John McCain and Mitt Romney, both of whom had created campaign ads featuring small portions of debates aired on Fox News.6 Nevertheless, during the primary both Romney and McCain defied Fox News' cease-and-desist requests, at least with regard to their campaign ads run on television.7
The Romney campaign relied upon a free speech argument in its letter to Fox explaining its decision to begin running an ad featuring a clip from a televised debate:
[T]he Romney campaign's use of a very short debate clip to deliver a message about Governor Romney is the very essence of political speech protected by the First Amendment. In addition to the First Amendment, statutes and numerous court decisions protect a political campaign's use of this material in this fashion. ... As for the law, the First Amendment's right of free speech protects the use of relevant information such as this in the public discourse. The campaign's use of these statements places this very relevant information in the marketplace of ideas that is a protected part of the discussion of the public policy positions of candidates for President of the United States. …