Still More on Political Campaigns and Copyright – Chilling Effects

August 24, 2012

‘Tis the season for political campaign mania.  For the next few months there will be no escape from relentless campaign news and advertising.  Some of these promotional measures have staying power.  I doubt that I’m only one who automatically conjures up a mental image of Bill Clinton when I hear Fleetwood Mac’s “Don’t Stop.”  The use of theme songs for political campaigns has a relatively extensive history.

Copyright claims against campaigns continue to surface.  Last Thursday, the Silversun Pickups served Mitt Romney’s campaign with a cease and desist letter for its use of “Panic Switch.”  In February, we highlighted a few strategies for finding and tracking campaign-related copyright cases after the Gingrich campaign was sued for unauthorized use of, “Eye of the Tiger.”  But, finding reliable data on information outside court-filed documents is considerably more difficult.

CHILLING EFFECTS

Private communications like cease and desist letters are not filed, of course.  Unfortunately, this means researchers have little help gauging a primary concern related to the circulation of these documents;  their chilling effects on free expression.  Writing about YouTube take-down notices in the 2008 presidential campaign, co-founder of Chilling Effects.org, Wendy Seltzer wrote:

Each week, blog posts are redacted, videos deleted, and web pages removed from Internet search results based upon private claims of copyright infringement… The law’s shield … becomes, paradoxically, a sword against the public, which depends upon these providers as platforms for speech.

24 Harv. J.L. & Tech. 171, 175

For this reason, some of this information  has been cataloged at the Chilling Effects Clearinghouse.  Also, companies like Google and Twitter publish ‘transparency reports’  which include statistics on takedown requests.  These requests are primarily delivered pursuant to statutory procedures that shield Internet Service Providers (ISPs)  from copyright liability when the ISP expeditiously removes the allegedly infringing material.  See section 512 of the Copyright Act.  These reports disclose the number of removal requests by copyright owners and governments, as well as the percentage of requests  with which the company has complied .

Largely, however, this activity takes place in private.  Seltzer argues that the privacy of  DMCA’s  “safe harbor” process is a function of its successful chilling effect:

 

If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint — silencing speech before an adjudication of unlawfulness. But because DMCA takedowns are privately administered through service providers, they have not received such constitutional scrutiny despite their high risk of error.

24 Harv. J.L. & Tech. 171, 176

 

Section 512 does offer remedies to those whose material has been improperly removed.  See 512(f).  So, there’s a public record of those but, a quick search reveals that these proceedings are far, far fewer in number than the massive number of takedown requests.

There are 51 cases for the following WestlawNext Search in All States and All Federal:

adv: 512(f)

In the last month alone, Google received over 5 million takedown notices. Moreover, on last week’s This Week in Law, Eric Goldman noted that there’s been just one successful 512(f) claim in the last 15 years (See episode 175 at about 15:18). We tested this assertion by narrowing the query above to headnotes:

adv: he(512(f))

Our first result (of 12) is Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195 (N.D.Cal.,2004)

Voting machine manufacturer’s copyright infringement suit threats against Internet service providers (ISPs) of website operators who had posted manufacturer’s e-mail archive, detailing problems with its machines’ performance, were knowingly material misrepresentations, within meaning of Digital Millennium Copyright Act (DMCA) provision imposing liability for damages; no reasonable copyright holder could have believed that posted information was protected by copyright, and manufacturer intended that its cease and desist letters would result in prevention of publication. 17 U.S.C.A. § 512(f).

There was also Rosen v. Hosting Services, Inc., 771 F.Supp.2d 1219, perhaps a partial victory:

The Court finds that while the incorrect descriptions of the materials in question could be found to be a knowing material misrepresentation, this determination cannot be made on the current record as a matter of law.

[Eds- This post was co-written with Mike C.]