August 25, 2008 | By corynne mcsherry

EFF and ACLU of Northern California to ISPs and Content Owners: Do Your Part to Protect Political Speech

Coauthored by ACLU of Northern California Technology and Civil Liberties Policy Director Nicole A. Ozer

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On blogs, personal and political websites, and through user generated content sites, ordinary citizens in extraordinary numbers are recreating a public sphere and reinvigorating the democratic debate at the core of our political system. 46% of Americans have already used the Internet in connection with the political campaign- more than during all of 2004.1 User-generated content is playing a particularly integral role, with 35% of Americans watching online videos and 10% using social networking sites to engage in political activity. 2

An overwhelming number of political discussions are taking place in publicly-accessible but privately-owned, online town squares. Which means that this important political speech depends on service providers, users, and content owners all doing their part to safeguard free speech.

Unfortunately, political speech has been threatened repeatedly by claims that controversial material violates a site’s terms of use or infringes copyrights or trademark rights. Here are just a few recent examples:

  • The International Olympics Committee demanded that YouTube remove a video of a protest by Students For A Free Tibet, based on a bogus copyright infringement claim. The IOC subsequently withdrew the notice, but the IOC’s demand is a lesson in the dangers of hair-trigger DMCA takedowns by service providers.
  • An alleged terms of service violation caused YouTube to take down a slideshow of a military funeral.
  • Another alleged terms of use violation caused YouTube to remove a video critical of John McCain, apparently because the video included numerous graphic images of the effects of war. But those images were integral to the commentary: the video focused on McCain’s support for the Iraq war.
  • An apparent copyright complaint caused Broadview Networks to shut down a political website parodying Exxon’s environmental policies.
  • The Republican National Committee threatened the online vendor CafePress for allowing users to create t-shirts using Republican trademarks, like "Grand Old Party," or the official version of the elephant logo.
  • The Chicago Auto Show tried to use allegations of trademark infringement to force the shutdown of a satirical website promoting transportation alternatives.
  • The Associated Press tried to use the Digital Millennium Copyright Act (DMCA) to force the takedown of blog entries that reproduced excerpts of AP news stories—some of them just a few words long.

ACLU of Northern California and EFF urge service providers to take extra precautions before pulling the plug on political speech. Remember that you're facilitating a new era of reason and debate, and that there are laws that protect you as a facilitator. By taking that responsibility seriously, you’ll do right by your users, content owners and the political process.

We urge content owners to count to ten and look at the Fair Use Frequently Asked Questions and Fair Use Principles for User-Generated Video Content for some guidance before firing off a complaint. Remember that you are legally obligated to consider whether the use of your material is a fair use. Consider carefully whether actions may result in the loss of free speech, and remember: the antidote to free speech that you don't like is MORE free speech. Make your voice heard with a written blog post, a video blog post, or a message in the comment thread. We also urge users to contact us if they feel that their political speech has been improperly censored.

As we move forward into the fall election season, the Internet can continue to revitalize our political lives in exciting and unforeseen ways—but only if service providers, users and content owners all do their parts. No matter where you stand on the candidates or the issues, we should all agree on one principle: No downtime for online free speech!

  • 1. http://www.pewinternet.org/pdfs/PIP_2008_election.pdf
  • 2. Id. As many as 65-milliion Americans watched the virally distributed, political web video, “This Land,” in 2004. Under the Radar and Over the Top: Online Political Videos in the 2004 Election. http://www.ipdi.org/UploadedFiles/web_videos.pdf

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