For Shame: Gannett Abuses DMCA to Take Down Political Speech

Like clockwork, another news organization is abusing the Digital Millennium Copyright Act’s hair-trigger take down process to stifle political commentary just when that commentary is most timely. This time it’s Gannett Co. Inc., a massive media conglomerate that owns, among many other publications, the Courier-Journal in Kentucky. The Courier-Journal’s editorial board interviewed a Democratic candidate for Senate, Alison Lundergan Grimes, and streamed the interview live. That stream included 40 uncomfortable seconds of the candidate trying desperately to avoid admitting she voted for President Obama (the president is none too popular in Kentucky). A critic posted the video clip online—and Gannett promptly took it down.

Of course, the group that posted the clip can counter-notice, but that’s not a satisfactory solution with an election less than a month away. Under the DMCA’s counter-notice procedure, YouTube has to give Gannett two weeks to respond before it can restore the video without losing the protection of the DMCA safe harbors.

This is just shameful. As a news organization, Gannett should surely know that posting was a non-infringing fair use. It was used for a transformative political purpose, the original work was highly factual, and the poster took the amount needed to accomplish that purpose (part of the point was to show the candidate extended efforts to avoid answering—a shorter clip might not have managed that). If the rest of the interview was utterly uninteresting, Gannett might be thinking that the clip was the “heart of the work,” but that is not enough to tip the balance away from fair use.

What’s even more appalling is that it happens pretty regularly. News organizations rely on fair use every day to do their work. Yet they have repeatedly used the DMCA to target political ads and criticism where they involve news clips, no matter how obvious the fair use. It’s past time for media organizations like Gannett to wise up and start defending free speech, rather than taking it down. Gannett can start by withdrawing its claim immediately.

Alternatively, this is one instance where YouTube might choose to stand up for its users, and free speech, and restore the video on its own. It has done so in the past, and this is surely an appropriate time to do so again. Whatever one’s views on the election itself, the video is timely political expression—a classic fair use—and it should be available to voters.

Fair Use and Intellectual Property: Defending the Balance

DMCA

Free Speech