The Obama campaign recently released a TV commercial that features Mitt Romney singing “America the Beautiful.” This is a song that’s in the public domain, so it’s no problem. The Romney campaign, hoping to do a little musical mockery of its own, responded with a commercial that features Obama singing Al Green’s “Let’s Stay Together.” Boom! This is decidedly not in the public domain, and BMG immediately sent a DMCA takedown order to YouTube. Within hours, the commercial was gone. Adam Serwer comments:
This seems like a straightforward instance of censorship, whatever BMG’s politics. There’s a doctrine in copyright law called “fair use,” which allows limited use of copyrighted material for “purposes of illustration or comment” or “use in a parody of some of the content of the work parodied.” Whatever one thinks of Romney’s political views, as Ars Technica’s Timothy Lee writes, “The Romney ad seems like as clear-cut a case of fair use as can be imagined.”
Obama’s singing is a core part of the ad’s message, and copyright law explicitly mentions commentary and criticism as justifications for fair use….Meanwhile, Lee notes, according to the law, “YouTube is required to wait a minimum of 10 days before putting the video back up.” It’s hard to see the benefit in allowing companies to unilaterally decide political disputes this way, whatever their intentions.
I agree on the merits. However, where Adam sees lemons, I see lemonade. It’s common knowledge that the best way to get Congress to act is to do something that personally annoys a congressman. So maybe this is that thing. Now that modern copyright law is hitting them where it hurts, perhaps the Republican caucus in the House will be outraged enough to introduce a bill that defines fair use more reasonably and eliminates the more draconian abuses of DMCA.
I know, I know: fat chance. But maybe if it happens again, they’ll be primed and ready. And if the elephant is annoyed enough times, maybe it will finally do something. Stranger things have happened.