October 7, 2010 | By Kurt Opsahl

Copyright Abuse in Ohio Governor Election

UPDATE: The video was restored on October 8. We thank YouTube for its willingness to restore the video so promptly.

With just weeks to go before Ohio votes on its next governor, the contest has devolved into a copyright squabble that is keeping a political video off YouTube on the basis of a bogus copyright claim.

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:

mytubethumbplay
Privacy info. This embed will serve content from vimeo.com

Untitled from Jeremy Froughlin on Vimeo.

While the use of copyright to take down political speech in the weeks before an election is hardly new (CDT just published a detailed report), this is a particularly egregious example. Why? Because the reuse of a few seconds of Aringate's video to to illustrate a political point is such an obvious fair use.

As an initial matter, the use is extremely transformative (adding new meaning and message). The original video by Arginate is an entry in a film festival's "Road Movie" genre, featuring Redden as Sam Carpenter, a man who provides some special tickets to two women in a bar. The political video's use, on the other hand, was to provide evidence that the supposed steelworker was actually a paid actor. The use could hardly be more transformative. As the Supreme Court explained, transformative works "lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright."

Moreover, the political ad only used a few seconds of the original film. While courts have held that "entire verbatim reproductions are justifiable where the purpose of the work differs from the original," a fair use is particularly justifiable when it uses the minimum necessary to make its point.

Since the original remains available for free online, it can hardly be said that there is any harm to the market for the original work. As the Supreme Court said, "a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create.”

Finally, fair use analysis considers whether the new work benefits the public interest. Communicating with the public about an upcoming election is a core aspect of public debates, and the new video contributes to that debate.

Arginate Studios should be ashamed to have claimed the video was infringing, and should withdraw its takedown notice immediately. YouTube should put the video back up. And Arginate should take a closer look at Section 512(f) of the DMCA — which provide penalties for misrepresenting that an online video is infringing — before sending any more notices.


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