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.

  • Adam

    Not sure exactly what you’re getting at with the cat’s paw remark, but worth noting that your prediction may be more accurate than you realized. See here and here.

    Long story short: Fox chief Roger Ailes is a longtime friend and ally of Rudy Giuliani. Fox’s harassment of John McCain over this issue has been, shall we say, selective.

  • lessig

    Yes, that might be right. I was thinking more about whether Fox was doing this to help Hillary.

  • Jardinero1

    I find it ironic that McCain, who has worked so hard to circumscribe political speech and association with campaign finance “reforms” is now on the side of free speech via a fair use argument. How will the campaign finance laws deal with Fox and McCain if Fox, instead of continuing the fight with McCain, declares it will donate the clip to his campaign instead. How much is it worth? Will such a donation violate campaign contribution limits?

  • http://ejnorman.blogspot.com Eric Norman

    There’s something that I just don’t know about all this. It seems like a technical detail, but it also seems to me that it could decide most of the matter.

    Do the participants in one of these debates assign (exclusively) their portion of the copyright to the televisers (e.g. Fox)? Yes or no.

    After all, the participants are the ones supplying the creative content; i.e. they’re joint authors. If they don’t assign copyright of that content to Fox, then I sure don’t see where Fox has much of an argument.

  • http://ejnorman.blogspot.com Eric Norman

    Or maybe the debates aren’t subject to copyright since they are government documents?

  • James Day

    Eric, Fox provided the visual backdrop. Stage, pedestals, background, lighting effects. I assume that those are an original creative work. Possibly also the makeup of the candidates. Also the presenter seemed to be present in one of the shots and his non-speaking participation is presumably the property of Fox. The words are clearly the most significant creative aspect but surely the others have some creative value, in part because they serve to set the scene as an election debate and that appears to have some value in this presentation..

    If the election debate aspect has limited value the candidates would presumably have a stronger case if they eliminated the presenter and background electronically so that it was solely the candidates visible in the video.

  • lessig

    Eric asks a great question. Whether or not Fox is putting any creativity into the event (and no doubt, the commentator, etc. would count), the joint author question is a good one. Let me see if I can rustle up an agreement.

  • Rob

    The current copyright regime allows that a broadcaster of any broadcast holds the right to recordings made from said broadcast. Like radio, the artists retain copyright of the actual songs but the radio station has a copyright stake in the broadcast itself. All the technical, recording, distribution, etc, along with those things mentioned (backdrop, staging, moderator) are things that Fox added to the content provided by the speakers.

    But I totally agree. IMO, it should be difficult to take a free document or other information (i.e. public domain) and lock it back up under copyright just by rebroadcasting it. In fact, it doesn’t work that way (only the new broadcast would be relocked under a new copyright) but the _defacto availability_ of out-of-print or hard-to-locate copies of free works can be removed from the public if the new broadcast is the (effectively) only copy.

  • http://ejnorman.blogspot.com Eric Norman

    I’m aware that Fox added something (even something necessary) to the event. But it seems like quite a stretch to me to call supplying stuff or effort or dollars acts of creative expression. After all, nobody tunes in to see the backdrop or experience the light show.

    I don’t know how it haqppened, but if Fox developed the questions for the participants from some kind of audience survey, then there would be a question about having copyright to those, also.

    Anyway, it’s just another example of current corporate mentality. The norm nowadays seems to be that the purpose of “intellectual property” is to preserve and enhance revenue streams. Fox even admited that: “We spent millions …”. Perhaps those folks the aspire to be President should go back and read the Constitution.

  • http://blogs.law.harvard.edu/infolaw William McGeveran

    I think McCain’s fair use argument is stronger than you do. After all, the market effect factor is pretty good for him, he is only using a very small portion of the whole work, and he is using it in a transformative manner. And the cases where candidates have been sued for using take-offs of corporate ads in their campaigns have gone in favor of fair use (Mastercard’s suit against Ralph Nader for his “priceless” commercials and AFLAC suing a candidate in Ohio for an imitation of their annoying duck).

    That said, of course, the danger of a lawsuit, even a losing one, has a serious chilling effect that is repugnant to open discourse, and this incident shows why the open debates principle is so important. But I do think McCain would win.

  • http://www.arkansawyer.com/wordpress John A Arkansawyer

    So, three blind mice, are you saying that blocking out the Fox logo on the clips on McCain’s site might be enough to satisfy Fox News? Or maybe just enough to satisfy the judge if Fox takes them to court?

  • Daniel Freiman

    Three Blind Mice, you bring up a good point. Fox probably does have a valid trademark claim for legitimate reasons and McCain probably wants the logo in the ad as a subliminal message. But I don’t see any evidence that Fox is consciously motivated by defending its trademark. This seems a like a blatant grab for total control of the material in question and nothing more. Maybe I’m looking in the wrong places for evidence, but the fact that they could have made a trademark claim and didn’t is all the more reason to believe that this is solely motivated by ideological views on copyright issues.

  • three blind mice

    Maybe I’m looking in the wrong places for evidence, but the fact that they could have made a trademark claim and didn’t is all the more reason to believe that this is solely motivated by ideological views on copyright issues.

    the trademark case is weak. mccain will argue he is using fox’s logo only to identify the source of the copyrighted material he is stealing under “fair use.”

    this is all about business. fox wants to keep a healthy distance from that liburl mccain (and who could blame them?) and by way of lagniappe, get themselves a bit of publicity from other media sources that carry this story which burnishes their right wing credentials and makes fox even more appealing to their viewers. THIS IS THE REAL WORLD. it has nothing to do with ideology about copyright.

    mccain should not accept this fight, create a new ad, and try breathing some life into his moriibund compaign.

  • Daniel Freiman

    By “ideology” I didn’t mean to imply that there wasn’t an economic motive behind that ideology. To oversimplify, the more you own, the more money you can make off what you own, so I want to own everything, so I claim I own everything, etc. That seems ideological to me. So yes, it is about business. I couldshould have been more clear about that.

    However, since the trademark statue explicitly refers to confusion about affiliation, connection, sponsorship, or approval, I’m not sure the trademark argument is that weak (from Fox’s point of view) if you take into account Fox’s stance that McCain’s ad is commercial use. Which would put it even more in the path of a trademark infringement argument. Correct me if I’m wrong, but I don’t think sourcing is a defense against trademark infringement.

    So if you think the trademark case is really that much weaker than copyright case, then fine. Otherwise, you have to ask, why they chose to go after copyright instead. If they’re of similar validity, then why didn’t they go after both?