Mitt Romney wins a battle for free (political) speech

This post has been corrected, as indicated below.

Looks like GOP presidential candidate Mitt Romney has won Round 2 in his campaign’s battle to present President Obama’s vocal stylings in a new context.

As noted in a previous post, Romney’s campaign uploaded an attack ad recently to YouTube accusing Obama of channeling appointments and stimulus dollars to contributors, only to have YouTube take it down at the request of BMG Rights Management, a music publishing company. The ad showed a series of headlines from national media outlets about Obama rewarding donors, while in the background the president could be heard singing “I’m so in love with you” -- the opening line to Al Green’s 1972 hit, “Let’s Stay Together.”


On Thursday the ad (shown below) reappeared on YouTube. That may not be the end of the story, but for now it’s the right result.

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Federal copyright law allows anyone to record the songs penned by Green (or any other songwriter) so long as the copyright holders are paid a fixed royalty per copy made. But before the recording can be added to a video and released to the public, the law requires the copyright holder to grant permission in the form of a license, whose price is set through negotiations.

One exception is for a fair use of the song in the video -- for example, when it’s a parody or commentary. But that bit of nuance is often ignored by copyright holders in their efforts to combat online piracy. Faced with an overwhelming volume of bootlegged songs online, they often rely on bots and other automated tools to find unauthorized recordings and demand their removal, rather than reviewing each case manually.

That may explain how BMG Rights Management, which represents one of Green’s co-writers on “Let’s Stay Together” (drummer Al Jackson Jr.), came to send YouTube a takedown notice for the Romney ad, even though it’s pretty clearly a fair use. And when it got the notice, YouTube was required by law to remove the video -- regardless of the weakness of BMG’s claim -- or else risk losing its protection from liability.

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The law also provides a way for those whose files are taken down by mistake or misrepresentation to get their material restored. That’s apparently what happened here, although YouTube wouldn’t comment on the specifics of the case. Instead, it issued this general statement about its procedures:

“When we’re notified that a particular video uploaded to our site infringes another’s copyright, we remove the material in accordance with the law. We have a counter-notification process in place if a user believes a content owner has misidentified their video, and we reinstate content if a user prevails in that process. We also reinstate videos in cases where we are confident that the material is not infringing, or where there is abuse of our copyright tools.”

The Obama campaign denies the allegations in the ad, and I can’t comment on its merits. I would simply argue that it’s a clever bit of political jujitsu, using Obama’s vocalizing at a fundraiser to buttress its allegations about the president’s supposed ministrations to donors. That’s political speech, not copyright infringement.

[For the Record, 3:39 p.m. July 19: The original version of the post said the law required YouTube to comply with BMG’s takedown notice regardless of the merits of its claim. That’s an oversimplification. The law requires websites to remove material in response to takedown notices only if they wish to preserve their immunity from liability under the Digital Millennium Copyright Act. That may be a Hobson’s choice, but it’s not a mandate.]


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