October 29, 2007 · Lessig
When in April we launched the campaign to get the candidates and political parties to require that any network televising a presidential debate do so freely, a friend wrote, “Oh come on. Do you really think a network is going to threaten a presidential candidate over a copyright claim?” I did, though I confess I thought it was more likely a network would be the cat’s paw for another candidate. The Fox network has now proven me wrong.
As reported over the weekend, Fox has told John McCain to “cease and desist use of a clip from the last debate that has the Fox logo on it.” Here’s the clip:
McCain, to his credit, has become a freedom fighter. His campaign has refused to comply with the Fox demand But as I’m sure Fox’s lawyers are telling Fox management, the romance surrounding “fair use” notwithstanding, Fox has a pretty good argument. There’s no clear authority supporting the idea that taking just a bit of a television clip is “fair use”; the use here is certainly not commenting upon Fox. Senator McCain’s “right” (in scare quotes because, as the extremists will lecture, fair use is a defense, not a right) to use the clip as he has is arguable at best. Under the law as it has been articulated by the highest courts, there’s no guarantee the Senator’s campaign would prevail.
Which is precisely why the demand we made in April was not that the RNC and DNC fund a bunch of fair use lawyers to help us litigate the “rights” of candidates and citizens to use and transform presidential debates. It was that candidates and the parties demand that any network granted the privilege of broadcasting a presidential debate do so freely — meaning free not in the sense of free beer (they do that already), but free in the sense of free speech: free so that others can take and build upon the speech uttered in these events, freely.
Some networks whined loudly at the time. “It cost us millions,” I was told by one network executive “to run a presidential debate. We need this control to make back our costs.” Maybe, though I doubt Fox is launching its legal campaign against McCain to increase its revenues.
But the more fundamental point is this: As the networks who have promised to (effectively) deliver free presidential debates have shown (CNN, NBC, ABC), even when free, it is still worth it enough to at least some. And in a world with YouTubes and p2p technologies, some networks are plainly enough. If Fox demands control, presidential debates don’t need Fox.
It is time that the presidential candidates from both parties stand with Senator McCain and defend his right to use this clip to advance his presidential campaign. Not because it is “fair use” (whether or not it is), but because presidential debates are precisely the sort of things that ought to be free of the insanely complex regulation of speech we call copyright law.
Indeed, as the target of the attack, and as one who has been totally AWOL on this issue from the start, it would be most appropriate if this demand were to begin with Senator Clinton. Let her defend her colleague’s right to criticize her, by demanding that her party at least condition any presidential debate upon the freedom of candidates and citizens to speak.