The Volokh Conspiracy - Political Ads, Inaccuracy, and Copyright Infringement:

The Seattle Times runs this editorial:

[T]here is one TV ad benefiting Democratic congressional candidate Darcy Burner that is beyond the pale, not because of what it says but because it violates a copyright of TVW, Washington's public-affairs network.

Burner, who is challenging incumbent GOP Rep. Dave Reichert in the 8th District, is not responsible for the ad. The Democratic Congressional Campaign Committee (DCCC) is running the ad attacking her opponent. The TV ad depicts Reichert at a meeting saying GOP leadership comes to him and tells him how to vote, and he'll take the vote.

It omits his next line: "There are some times when I say, 'No, I won't.'"

Sounds pretty bad — classic and improper quoting out of context. But that's not why the ad is "beyond the pale," according to the Times:

Our criticism goes beyond the ad's inaccuracy, however. Rather, it is about the use of copyrighted TVW footage without permission, which would never have been granted in this case.... [Burner] might not be responsible directly for the ad, but she benefits. Burner should denounce the ad and call for its removal.

Two thoughts:

1. It's far from clear to me that using the footage is indeed copyright infringement. It is certainly copying, and even heavily state-funded nonprofits (or for that matter even state-run groups, which TVW isn't) may own copyrights. But this might well be a classic in which the copier has a valid fair use defense ("fair" here is a copyright term of art, which has little to do with the fairness of the ad). The use is noncommercial, it's for purposes of political commentary, it's copying material that's predominantly factual, it's copying only a part of the material (that may well be the problem), and it doesn't seem to be in any meaningful sense affecting the commercial value of the copyright owner's work or denying the copyright owner licensing revenues. It's hard to tell for sure without seeing just how much of TVW's broadcast was taken, but from what I've heard about the controversy the fair use defense is quite strong.

Notably, the Times editorial doesn't even hint at the existence of the fair use defense, and makes it sound like any copying for rebroadcast of TVW's work is categorically copyright infringement. That itself seems a little misleading, in my view, unless there are some factual details I'm missing.

2. The Times says the ad is indeed "inaccura[te]," and from the Times's description, it certainly seems to be so out-of-context as to be inaccurate. If that's so, the Democratic Congressional Campaign Committee is deliberately distorting a candidate's position in the days before an election in order to sway voters. Can it really be that this is within the pale, but copyright infringement — even if it were indeed copyright infringement — is what places the ad beyond the pale? (Note that even if this were infringement, it wouldn't even be technically criminal copyright infringement.)

I surely agree that the parties ought to follow the law, and ought not commit torts. But aren't we losing perspective a bit when we see them as having a greater civic duty (or even an identical civic duty) to respect copyrights than to be accurate when attacking a rival candidate? And shouldn't newspapers focus more on policing the accuracy of political debate — something on which media reaction is often the only effective remedy — than on calling foul on alleged copyright infringers, which the courts can handle just fine by themselves?

I should note that item 1 strikes me as probably more important here than item 2, since if I'm right in my analysis the Democratic Congressional Campaign Committee is not at all guilty of copyright infringement but indeed guilty of inaccuracy. Moreover, on item 1, the analysis is likely clearer and more objective than on item 2. Still, I wanted to bring up both points.

Thanks to Venkat Balasubramani for the pointer.

	[Eugene Volokh, November 1, 2006 at 2:08pm] Trackbacks Political Ads, Inaccuracy, and Copyright Infringement: The Seattle Times runs this editorial: [T]here is one TV ad benefiting Democratic congressional candidate Darcy Burner that is beyond the pale, not because of what it says but because it violates a copyright of TVW, Washington's public-affairs network. Burner, who is challenging incumbent GOP Rep. Dave Reichert in the 8th District, is not responsible for the ad. The Democratic Congressional Campaign Committee (DCCC) is running the ad attacking her opponent. The TV ad depicts Reichert at a meeting saying GOP leadership comes to him and tells him how to vote, and he'll take the vote. It omits his next line: "There are some times when I say, 'No, I won't.'" Sounds pretty bad — classic and improper quoting out of context. But that's not why the ad is "beyond the pale," according to the Times: Our criticism goes beyond the ad's inaccuracy, however. Rather, it is about the use of copyrighted TVW footage without permission, which would never have been granted in this case.... [Burner] might not be responsible directly for the ad, but she benefits. Burner should denounce the ad and call for its removal. Two thoughts: 1. It's far from clear to me that using the footage is indeed copyright infringement. It is certainly copying, and even heavily state-funded nonprofits (or for that matter even state-run groups, which TVW isn't) may own copyrights. But this might well be a classic in which the copier has a valid fair use defense ("fair" here is a copyright term of art, which has little to do with the fairness of the ad). The use is noncommercial, it's for purposes of political commentary, it's copying material that's predominantly factual, it's copying only a part of the material (that may well be the problem), and it doesn't seem to be in any meaningful sense affecting the commercial value of the copyright owner's work or denying the copyright owner licensing revenues. It's hard to tell for sure without seeing just how much of TVW's broadcast was taken, but from what I've heard about the controversy the fair use defense is quite strong. Notably, the Times editorial doesn't even hint at the existence of the fair use defense, and makes it sound like any copying for rebroadcast of TVW's work is categorically copyright infringement. That itself seems a little misleading, in my view, unless there are some factual details I'm missing. 2. The Times says the ad is indeed "inaccura[te]," and from the Times's description, it certainly seems to be so out-of-context as to be inaccurate. If that's so, the Democratic Congressional Campaign Committee is deliberately distorting a candidate's position in the days before an election in order to sway voters. Can it really be that this is within the pale, but copyright infringement — even if it were indeed copyright infringement — is what places the ad beyond the pale? (Note that even if this were infringement, it wouldn't even be technically criminal copyright infringement.) I surely agree that the parties ought to follow the law, and ought not commit torts. But aren't we losing perspective a bit when we see them as having a greater civic duty (or even an identical civic duty) to respect copyrights than to be accurate when attacking a rival candidate? And shouldn't newspapers focus more on policing the accuracy of political debate — something on which media reaction is often the only effective remedy — than on calling foul on alleged copyright infringers, which the courts can handle just fine by themselves? I should note that item 1 strikes me as probably more important here than item 2, since if I'm right in my analysis the Democratic Congressional Campaign Committee is not at all guilty of copyright infringement but indeed guilty of inaccuracy. Moreover, on item 1, the analysis is likely clearer and more objective than on item 2. Still, I wanted to bring up both points. Thanks to Venkat Balasubramani for the pointer.