April 29, 2007  ·  Lessig

So when I was talking to others about the petition to the RNC/DNC, I was frankly hesitant just because it seemed so obvious. Why would any network resist? Then I read MSNBC’s rules for the use of its recent debate, and realized (once again) just how clueless I am.

As reported by Jeff Jarviz at BuzzMachine (and cross posted at Prezvid), here’s MSNBC’s regulation of the use of video of the Democratic debate:

USAGE RULES FOR USE OF AUDIO OR VIDEO OF MSNBC MATERIAL RULES FOR “THE SOUTH CAROLINA DEMOCRATIC CANDIDATES DEBATE” FROM MSNBC:

(The following rules apply to all media organizations that are not part of NBC)

News organizations, including radio, network television, cable television and local television may use excerpts of “The South Carolina Democratic Candidates Debate” subject to the following restrictions (internet use is not permitted):

1. An unobstructed onscreen credit “MSNBC” must appear during each debate excerpt and remain on screen for the entire excerpt.

2. Each debate excerpt must be introduced with an audio credit to MSNBC.

3. No excerpt may air in any medium until the live debate concludes at 8:30 pm ET.

4. No more than a combined total of 2 minutes of excerpts may be chosen for use during the period from the end of the live debate (8:30 pm ET) until 1:00 am ET on Friday, April 27. After 1:00 am ET, Friday, April 27, a total of 10 minutes may be selected (including any excerpts aired before 1:00AM). The selected excerpts may air as often as desired but the total of excerpts chosen may not exceed the limits outlined.

5. No excerpts may be aired after 8:30 pm on Saturday, May 26th. Excerpts may not be archived. Any further use of excerpts is by express permission of MSNBC only.

6. All debate excerpts must be taped directly from MSNBC’s cablecast or obtained directly from MSNBC and may not be obtained from other sources, such as satellite or other forms of transmission. No portions of the live event not aired by MSNBC may be used.

A feed of MSNBC’s telecast of the debate will be provided (details below), additionally limited audio/video mults will be available on site in the media center.

This is ridiculous. I’m grateful to everyone who wrote to RNC/DNC. I’ve spoken to the DNC. I’ve not yet been able to get the RNC to return a telephone call.

But this issue should move beyond the parties to the candidates. No candidate should agree to be a part of a debate broadcast by an organization that purports to exercise this type of control over the video of the debate. No candidate, that is, that understands this century.

  • http://ideas.4brad.com Brad Templeton

    The problem, Larry, is that candidates believe their own supporters will be more ethical than their critics. Free use of the video will result in lots of nasty videos using clips to show the candidate in an unflattering light. Among the best examples of this was the “Bush vs. Bush” debate that The Daily Show did several years ago, using clips of Bush from the 1980 debates vs. speeches from Pres. Bush. (The more recent one they did was not nearly as good.) Fabulous stuff, but you can see why a candidate would fear it being done to him or her, and now it will be all over youtube not just on cable.

    So the tradeoff is obvious. Since my opponents are nasty and my supporters are nice people, it’s a win to give up my supporters’ ability to do this to criticise my opponent in exchange for not being attacked by my opponents with video of me.

    Of course, items like the Bush vs. Bush debate seem like fair use. But that’s a battle they have to fight, and if you can keep people scared of using their fair use rights, and certainly not encourage them with open permission, it’s a small “victory.”

    For this reason I do not hold great optimism. On the other hand, on the plus side, if you can convince just one side to refuse to go into the debate unless the video is open, that makes the other side look bad, and brings them aboard quickly.

  • Eric Norman

    There’s something I’m having trouble with here. All that happens in this and other events is that someone makes arrangements so that they can point a camera at candidates and push the record/televise button. I’m having a real hard time seeing any creativity in that. Ergo, I’m not even sure the concept of copyright is applicable. At least it doesn’t seem very applicable to the camera pointers.

  • three blind mice

    No candidate should agree to be a part of a debate broadcast by an organization that purports to exercise this type of control over the video of the debate. No candidate, that is, that understands this century.

    professor you are loosing your revolutionary zeal. remonstrating candidates to simply refuse to participate in any such broadcast instead of calling for legislation to strip broadcasters of their copyrights to “political speech?” is the appeal of germany’s democratic ordnung getting to you?

    you are once again only considering the consumer’s narrow interest and ignoring the costs associated with organising, hosting, recording, and broadcasting such a debate.

    where you see “political speech” (which as a consumer is all you see) the network executive sees costs – and lots of them. as the producer of the content you consume, he’s paying union wages to everyone from the cameraman to the second assistant to the third best boy grip, health care benefits, FICA contributions, equipment and studio rental, and a host of other expenses we can only imagine.

    for better or for worse, the only way the network executive can justify and recover these costs is through advertising – even if it is only self-advertising MSNBC.

    it is a simple fact of life that when these broadcasts are made available in manner that strips MSNBC of advertising revenue there is no longer any justification for MSNBC to produce them. full stop.

    now with nothing to consume there is no copyright and no worries, but this can hardly be the desired result, so let’s look at some of these “unnecessary regulation” (without the rose colored glasses) and see how “unnecessary” they really are:

    1. An unobstructed onscreen credit MSNBC must appear during each debate excerpt and remain on screen for the entire excerpt.

    “unnecessary reason” – this ensures that MSNBC at least receives the value of self-advertising when the recording is rebroadcast.

    practical impact on “the commons”: none. it would take more effort to remove the MSNBC logo.

    2. Each debate excerpt must be introduced with an audio credit to MSNBC.

    “unnecessary reason” – see above.

    practical impact on “the commons”: none. even a child can make mash-ups.

    3. No excerpt may air in any medium until the live debate concludes at 8:30 pm ET.

    “unnecessary motivation”: MSNBC gets to show it first. No simulcast so you are stuck watching MSNBC – and any associated advertising.

    practical impact on “the commons”: patience.

    4. No more than a combined total of 2 minutes of excerpts may be chosen for use during the period from the end of the live debate (8:30 pm ET) until 1:00 am ET on Friday, April 27.

    “unnecessary reason” – MSNBC gets their logo on other news broadcasts for three days. limiting the except to 2 minutes encourages people to watch the MSNBC broadcast or other news broadcasts and not to wait until morning to watch it the next day on YouTube (along with YouTube’s advertising).

    practical impact on “the commons”: patience boys, patience.

    5. After 1:00 am ET, Friday, April 27, a total of 10 minutes may be selected (including any excerpts aired before 1:00AM). The selected excerpts may air as often as desired but the total of excerpts chosen may not exceed the limits outlined.

    a clear exemption for YouTube, but by now the information is old news and of limited value to the advertising stream.

    practical impact on “the commons”: well you’ve already seen it by now.

    frankly, none of these restrictions (in addition, we might add, to existing statutory rights of fair use) are particularly cumbersome, troublesome, or even annoying to anyone that understands this century.

    for those whose economic thinking is still stuck in the last century, well, what can we say?

  • Ted

    Of course there are costs that the networks are shouldering by televising the debates. The issue, though, is that the broadcasters are given their licenses not by right, but by the privilege granted to them by the public, to use the a public resource to serve the public interest. Nowhere is this role more importantly fulfilled than in the dissemination of political speech.

    Since MSNBC isn’t a broadcast network, PICON doesn’t necessarily apply, and your economic argument certainly holds water. But realistically, the costs associated with production of a political debate broadcast are minimal in comparison to tradition cable programs. Since MSNBC isn’t obliged to do so as a term of their broadcast license, the best we can hope for is to get the debate participants to apply the pressure.

    Finally,
    “a clear exemption for YouTube, but by now the information is old news and of limited value to the advertising stream.”

    Limited value for the advertising stream – and limited value as a point of analysis. Holding public use back, especially since such use “ends” after one month, greatly diminishes the relevance of the information, and for what possible value to MSNBC? Its not as if doing so is going to somehow net MSNBC more money in the end for the same reason.

  • three blind mice

    and limited value as a point of analysis.

    is there really any significant impact on analysis and commentary Ted? all of the talking points of these debates – mrs. clinton’s phony southern accent included – seem to us to be pretty quickly spread throughout the mainstream media, blogosphere, and press.

    the impact is on re-broadcast and we think the balance between the RIGHTS of the original broadcaster and the ITERESTS of consumers on YouTube are well met by MSNBCs totally reasonable restrictions.

    anyway at the end of the day, nothing that happens in the U.S. presidential election can honestly be called a debate, or even political speech. it’s all just mindless entertainment.

  • Ted

    That’s certainly a very cynical view. Even if that is the case, I believe the motivation of Lessig’s suggestion is to enhance the debate, not maintain the status quo. If people have the flexibility to use the content, perhaps the accountability that would be engendered by this use (as Brad points out) would spur discussion in the right direction, rather than leave it as “entertainment.”

    Political speech is afforded special consideration and protection, because it is viewed as critical to the functions of democracy. MSNBC’s codification sends a chilling message to the public that their ability to use content generated by their chosen and potential leaders is limited, at a time when just the opposite should be happening. They don’t own the debate. We do. Granting them first right to broadcast is a fair enough way for them to re-coop the costs they invest in covering the debate. The benefit to MSNBC of their placement of restrictions is economically negligible, and more importantly represents a restriction on otherwise protected speech.

  • http://nondocs.blogspot.com Daniel Freiman

    Maybe I’m confused because these “rules” are out of context, but am I the only one who sees the first lines?

    “The following rules apply to all media organizationsNews organizations, including radio, network television, cable television and local television may use excerpts…

    This doesn’t seem to address what I can do with clips of the debate. Video sharing sites aren’t news organizations so I wouldn’t think this applies to youtube. The daily show and late night shows might be an issue because, if i remember correctly, these types of shows sometimes claim to be news shows in order to not have to give all candidate equal time (I’m thinking about the the CA governors election a few years ago). It seems to me MSNBC is only trying to regulate its competitors which, in theory, is reasonable in and of itself.
    Now this is not to say that they have “granted” me or these non-news programs the right to do whatever we want by failing to mention me. And in limiting other competitors they may be implicitly claiming the right to limit anyone else (which is troubling).
    However, fair use does not cover commercial use (to the best of my pre-law school understanding), and news organizations are commercial corporations. So maybe MSNBC isn’t infringing on fair use here or even claiming the right to. You’ll have to ask someone who’s been to law school about that one.
    But let’s at least keep the facts straight. They aren’t limiting your rights at this time (unless you happen to be a news organization), and they may or may not implicitly be claiming the right to do so in the future. So from a legal/fair use standpoint, I’m not sure this document says much. For a policy standpoint of letting all sources, including commercial, have free reign over debate footage, that’s another issue.

  • three blind mice

    They don’t own the debate. We do. Granting them first right to broadcast is a fair enough way for them to re-coop the costs they invest in covering the debate.

    repeat after us: copyright protects expression, not content.

    MSNBC does not own the content of the debate – they own the recording made at their own trouble and expense.

  • Eric Norman

    Repeat after us: copyright protects creative expression, not content and not effort and not economic investment.

  • three blind mice

    copyright protects creative expression, not content and not effort and not economic investment.

    you seem to be confusing copyrights with patents.

    what we are talking about here in this thread is the video recording made by MSNBC. read the professor’s carefully worded statement in his post.

    No candidate should agree to be a part of a debate broadcast by an organization that purports to exercise this type of control over the video of the debate.

    “control over the video of the debate” – not control over the debate itself.

    and there ain’t no proporting. MSNBC is completely within their legal rights to exercise this sort of control over their video recording. so was C-SPAN. whilst C-SPAN made a business decision to make their video recordings available under a different type of license, we think it is doubtful that a for-profit organisation like MSNBC can/will do the same.

    it is people who DO NOT GET the internet who continually insist that this machine fundamentally changes human nature.

  • ACS

    Eric Norman says

    Repeat after us: copyright protects creative expression, not content and not effort and not economic investment.

    Well that is patently wrong. Copyright protects original works. Originality and creativity are completely separate. It may be an original cinematic work if the recorder is turned on because it is the first time the recording has been made – The fact that it is not creative does note prevent the subsistence of copyright.

    Get your law straight, buddy.

  • three blind mice

    you know ACS, on second thought Eric Norman might have a point…. this was a debate of DEMOCRATIC presidential candidates. certainly, there is nothing original or creative coming out any debate between U.S. Democrats.

    on a more serious note, however, the shibboleth of “creativity” is used by commons-ists to undermine the U.S. constitutional basis of copyright law. a narrow view of what promotes the progress of.. useful Arts… serves well the purposes of those who would strip the U.S. congress of its constitutional authority to extend fundamental rights to authors and artists.

    it would be nice if the concern for the constutional protections of “political speech” was consistently held in regards to other constitutional rights.

  • ACS

    I agree mice.

    The distinction between congress’s constitutional powers (and the powers of parliament in other jurisdictions such as Australia) is often, within the public arena, seen to succumb to the populist view that all policital speech should be unimpeded.

    The notion, however, is flawed as you have correctly pointed out. Certainly the leftist justification that ‘all constitutional rights are equal – but some are more equal than others’ is at work here.

    Albeit – I have not noticed much creativity from the republican movement either – lol ;)

    ACS

  • three blind mice

    Albeit – I have not noticed much creativity from the republican movement either – lol ;)

    surely you must be joking ACS. that whole fiction about iraq and WMDs? the belief that abstinence promotes AIDS awareness? that idea stem-cell research is bad science? the fraudulent policy that tax cuts for the ultra-wealthy help the poor?

    those people have more demonstrated more creativity in their ignorant denial of truth than just about any other group of people we’ve ever seen.

    pity copyright cannot be used to stop them!!!!

    /sorry for the derail. we didn’t want anyone on this board to get the idea that our swipe at democrats was in any way showing support for the gang of criminals who call themselves republicans.

  • Eric Norman

    “… those who would strip the U.S. congress of its constitutional authority to extend fundamental rights to authors and artists.”

    And who are the authors and artists in a political debate? It sure isn’t MSNBC; they’re just the publishers.

    Isn’t it nice to have this spirited little dabate here without anyone caring about who “owns” the words? Why, we might even advance the arts and sciences a bit.