Is Fox News stifling freedom of speech?

The Center for Democracy and Technology (CDT) has harshly criticized Fox News for suing a US senate candidate over the alleged use of “copyrighted” footage in a TV and web ad.

The organization also expressed its concern over a threatening DMCA (Digital Millennium Copyright Act) takedown notice the network sent to YouTube – which resulted in the unceremonious removal of the disputed ad.

“While actually bringing a lawsuit is a novel twist, this incident is the latest in a trend that first garnered major attention two years ago when the McCain campaign publicly complained to YouTube about similar takedowns aimed at some of its ads,” explained CDT policy analyst Andrew McDiarmid.

“[Clearly], the media companies’ approach is problematic because the way campaigns tend to use news footage is almost certainly protected under the fair use doctrine, and thus should not be subject to DMCA takedowns.”

According to McDiarmid, the rampant political abuse of the notice-and-takedown system is a problem that will likely increase as campaigns and commentators rely ever more on new media to reach voters.

“[Still], in all cases, the campaign ads are paradigmatic fair uses: relatively short clips reused toward a new purpose (and a civic purpose at that), with no effect on any market for the source material.

“[Unfortunately], it seems the motivations behind the takedowns have little to do with copyright and more to do with protecting reputations for objectivity and staying above the political fray.”

McDiarmid also emphasized that the DMCA was not originally formulated to regulate or deal with political ads.

“[As such], using its process to protect them is a clear abuse of a system that otherwise strikes a pretty reasonable balance between enforcing copyright and allowing user-generated content online.

“[Of course], it is [certainly] ironic that news networks – [supposedly] amongst the foremost defenders of the First Amendment – balk at the reuse of their footage for political advertising and commentary.

“[Obviously], political speech is at the very core of what the First Amendment is intended to protect. As more of that speech happens online, targeting it with takedowns could undermine the tremendous value of the Internet to the political process.”