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Claims Against Trump Campaign Video Call for Revisiting Intersection of Speech and Copyright

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When our nation reels from a global pandemic and nationwide protests against systemic racial injustice and law enforcement abuses, the circumstances call for prioritizing public health and civil rights.  It hardly seems the time to re-examine digital copyright law.  It turns out, however, that the misuse of digital copyright law can short-circuit discussions of these critical issues.

This week, copyright claims were used to suppress the Trump campaign’s efforts to offer its own narrative about the ongoing crises, illustrating again how unjustified copyright claims suppress critical political conversations.

The events unfolded when an unknown copyright holder claimed the Trump campaign had infringed copyright with a video addressing the unjustified killing of George Floyd, and demanded Twitter take the video down.  As required by Section 512 of the 1998 Digital Millennium Copyright Act (DMCA), Twitter removed the video on Thursday night.  A similar video was subsequently removed from Facebook and Instagram pursuant to a claim by the same anonymous rightsholder.

On Friday night, Trump took to tweeting (incorrectly) at Twitter that it was unlawfully censoring his tweets.  In so doing, Trump confused Section 512 of the DMCA, under which the takedown demand was made to Twitter, with Section 230 in the Telecommunications Act.  Section 230 is an unrelated federal law that gives digital services flexibility to remove third-party content that is obscene, lewd, violent, or otherwise objectionable, and is the subject of a recent (and unconstitutional) Executive Order by Trump.

In confusing Section 512 and Section 230, Trump’s Friday night tweet is in good company: major newspapers routinely botch coverage ([1], [2]) of these two Internet law provisions.  Twitter CEO Jack Dorsey responded to Trump’s tweet explaining that the takedown was not only lawful, but compelled by the DMCA.  Even Gab, the competing ‘free speech absolutist’ social media service that rarely misses an opportunity to drag Twitter under its own roof, concurred.

The ‘offending’ video itself is an extended montage of photographs and videos of recent protests and violence, in which no single image appears for more than a few fleeting seconds.  This collage is arguably transformative, particularly in the context of political speech.  As a result, the video is arguably noninfringing fair use.

One basis for that assessment is a case involving the rock band Green Day.  Green Day prevailed with a fair use defense involving somewhat similar circumstances, where it was accused of infringement for having used a single image in a video montage.  Unlike the Trump campaign’s video, Green Day’s unlicensed use didn’t even have the benefit of being political expression.  If Green Day’s use was fair despite occurring in the context of entertainment media, a similar use should be fair in the context of political speech, since that’s where First Amendment considerations apply most strongly.  But while the copyright claimant objecting to Trump’s video probably has a weak claim, Federal copyright law doesn’t give digital intermediaries like Twitter much discretion to make that call when presented with a takedown demand.

As I have written for many years ([1], [2], [3]), misuse of the DMCA’s extremely powerful takedown remedy is common, and as early as 2010 the Center for Democracy and Technology authored a report documenting DMCA abuse by copyright claimants in political campaigns.  Political campaigns supporting the late Senator McCain and former President Obama were also prominent victims of dubious takedown demands by copyright owners.  This takedown shows the problem persists.

As it turns out, the Senate Judiciary Subcommittee on Intellectual Property has been holding hearings on the DMCA.  I raised these concerns in my own Senate testimony earlier this spring, but they have been given short shrift so far.  A recent report by the United States Copyright Office on Section 512 shrugged these abuses off, though they have been widely documented by recent media investigations.  ([1], [2], [3])  In fact, the Copyright Office went so far as to say that digital services did not have discretion to disregard facially unreasonable takedown demands provided the paperwork was in order.  Thus, digital services that decline to honor questionable copyright-based demands to suppress content like the Trump campaign’s video do so at their legal peril.

Although the U.S. Copyright Office’s interpretation is not an implausible interpretation of the law, it makes for terribly shortsighted policy for reasons that should now be clear: If digital services don’t have discretion to ignore dubious claims, legitimate speech can be heckled offline using copyright.

Digital services should be empowered under the DMCA to reject questionable copyright claims by rightsholders.  As the law currently stands, they can be bent to the will of anonymous claimants, under threat of ruinous liability.  Because the penalties for copyright claimants making misrepresentations under the DMCA are so weak, there’s insufficient deterrent to lying about copyright ownership in order to suppress whatever commentary one doesn’t like, even that of a Presidential campaign.

The takedown of the Trump campaign video by an unknown copyright claimant provides a small teachable moment amid overlapping crises of far greater significance.  This copyright dispute isn’t occurring in a vacuum; our nation is in crisis.  We desperately need action to set our nation back on course.  That course can only be charted by serious conversations about reforming law enforcement practices and our criminal justice system to treat all people, particularly Black Americans, equally.  That is going to involve listening to a lot of speech that we don’t agree with, including some speech we find downright troubling.  If pretextual copyright claims are used to bat down every instance of speech someone disagrees with, that conversation is not going to happen.

It can’t go without notice that the U.S. President is the last person to want for a platform to express his views.  A copyright takedown is not going to meaningfully affect Trump’s ability to reach his audience.  But the principle applies more broadly: most don’t have the benefit of the highest office in the nation from which to air their views.  For those who aren’t the President and seek to use digital services to share troubling stories of injustice, brutality, and violence, to speak truth to power, illegitimate copyright claims could present a far more significant barrier.  

Intellectual Property

The Internet enables the free exchange of ideas and content that, in turn, promote creativity, commerce, and innovation. However, a balanced approach to copyright, trademarks, and patents is critical to this creative and entrepreneurial spirit the Internet has fostered. Consequently, it is our belief that the intellectual property system should encourage innovation, while not impeding new business models and open-source developments.