use of copyright to suppress a political speech

[jfn]

At 7:03 PM -0500 12/1/07, michael curtis wrote:
>  So I guess the new free speech rule is that candidates can 
>broadcast commercials and then if they prove embarrassing sue 
>successfully for copyright to prevent rebroadcast.  This may be 
>copyright law, but I doubt it.  It is lunatic free speech law.

The issue here is process, rather than law. The Digital Millennium 
Copyright Act amended the Copyright Act to provide a safe harbor for 
interactive service providers like Utube, which allows them to escape 
infringement liability for anything posted to the website, /provided/ 
that 1)they take it down upon notification by the copyright holder 
that the use is infringing, and 2)put it back up upon 
counter-notification by the poster that the use is non-infringing 
unless the copyright holder goes to court for a declaratory judgment 
within 10 days.

In effect, the copyright holder gets a TRO and ten days to file for a 
permanent injunction. The rationale is that we don't want Utube 
making the decision as to whether the use is infringing even in easy 
cases, much less deciding which are the easy cases.

John Noble

At 7:03 PM -0500 12/1/07, michael curtis wrote:
>Here are a couple of facts that are relevant.  The speech was a 
>political one; the judge posted the speech on his web site for the 
>public to view; utube used perhaps 60 seconds.  In effect the speech 
>posted to the web was a political commercial.  So I guess the new 
>free speech rule is that candidates can broadcast commercials and 
>then if they prove embarrassing sue successfully for copyright to 
>prevent rebroadcast.  This may be copyright law, but I doubt it.  It 
>is lunatic free speech law.  Basically a candidate for election as a 
>judge who makes a political speech & then broadcasts it on the web 
>should not be able to chill political discussion with a successful 
>copyright claim; nor for that matter, as a matter of free speech 
>policy, should we countenance a dubious threat to sue to suppress 
>highly relevant political information which a candidate himself has 
>broadcast--when the use is non commercial; when it is a fairly short 
>segment; and when it is clearly highly relevant to an upcoming 
>election in which the speaker is a candidate. If this is not at the 
>very center of free speech in a democracy, what is? This is a far 
>cry from the private letters of a public figure. 
>
>A candidate for public office must tolerate false statements of fact 
>about him or herself unless they are intentionally false or 
>reckless.  But the candidate has a property interest protecting 
>utterances he chose to broadcast as a political message from being 
>circulated after the candidate finds them embarrassing.  Caveat: 
>Utube did not say who made the copyright claim.
>
>Michael Curtis
>
>----- Original Message -----
>From: <mailto:jfnbl at earthlink.com>jfn
>To: <mailto:guayiya at bellsouth.net>guayiya
>Cc: <mailto:CONLAWPROF at lists.ucla.edu>CONLAWPROF at lists.ucla.edu
>Sent: Wednesday, November 28, 2007 2:20 PM
>Subject: Re: use of copyright to suppress a political speech
>
>At 7:40 PM -0500 11/27/07, guayiya wrote:
>
>>jfn wrote:
>>
>>>RE: use of copyright to suppress a political speech
>>>
>>At 8:45 AM -0600 11/27/07, Malla Pollack wrote:
>>
>>>Speaking as a copyright expert, I predict that the judge's (or his 
>>>proxy's) law suit would fail. 
>>>
>>
>>Prof. Pollack gives short shrift to the author's interest in 
>>preventing publication of his work
>>
>>
>>
>>
>I am not a copyright caselaw expert, but, as an author, I find this 
>statement genuinely bizarre.  In what context has the law recognized 
>such an interest?
>
>
>Most famously, J.D. Salinger's personal correspondence. I'll grant 
>it's not a perfect fit with a campaign speech.\\
>
>John Noble
>
>
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