If passed, California’s Proposition 8 would “change the California Constitution to eliminate the right of same-sex couples to marry.” Prominently featured in a pro-Prop 8 ad is video of schoolchildren attending the same-sex wedding of their teacher – video originally published by the San Francisco Chronicle. Whatever you think of Prop 8, is it fair use for news footage to be expropriated for political purposes? Stanford Law School professor Lawrence Lessig weighs in.
ANNOUNCER: Opponents of Proposition 8 said gay marriage has nothing to do with schools. Then a public school took first-graders to a lesbian wedding, calling it a teachable moment. [END CLIP] BOB GARFIELD: That’s tape from a television ad funded by ProtectMarriage.com, part of its effort to get out the vote on a California ballot initiative known as Proposition 8. If passed, Prop 8 would, quote, “change the California Constitution to eliminate the right of same-sex couples to marry.”
Prominently featured in the ad is video of schoolchildren attending the same-sex wedding of their teacher in mid-October, video originally published by the website of The San Francisco Chronicle.
Whatever you think of Prop 8, is it fair use for news footage to be expropriated for political purposes? Lawrence Lessig is a professor at Stanford Law School and founder of the Center for Internet and Society. He joins me now. Lawrence, welcome back to the show. LAWRENCE LESSIG: Thank you for having me. BOB GARFIELD: At least some object to the way these kids were used, mainly their parents, who happen to be against Proposition 8. Four of them wrote a letter to the Yes on 8 campaign demanding that they stop running the ad, and they also sent a letter to The San Francisco Chronicle asking the publisher to intervene on their behalf. Do these parents have any legal claim concerning the video images of their children? LAWRENCE LESSIG: Well, I find myself in a really conflicted position, because I strongly oppose Prop 8, but I also strongly oppose the law standing in the middle of these political campaigns and trying to adjudicate what speech can be used in a very hotly-contested political context.
So I don't think the law should stop the ability of people to use material that’s been publicly distributed, although the claims here are quite complicated. On the one hand there’s fair use, which is about the copyright issue, about using copyrighted work that was published by some news organizations, for example.
But, on the other hand, there’s also potentially a right to privacy or publicity issue where if you use somebody’s image in an advertisement then that raises legal questions, as well. Now, typically that’s for commercial purposes, but I know lawyers are quite eager to extend that as broadly as it can be extended. BOB GARFIELD: What about the fact that the subjects in question here are children, do the parents enjoy some special protection either under fair use law or under privacy law? LAWRENCE LESSIG: They enjoy extraordinary protection under the law called decency, and so I fully understand and agree with them that they don't want their kids to be used in a political football match.
The interest weighing in favor of privacy and control of rights of publicity are stronger for children than they are for adults, certainly. But, again, I would hope the law could stay out because that’s become such a nightmare, especially in the presidential campaign right now. BOB GARFIELD: Now, apart from the question of whether it’s right or wrong to use these kids to flog a political point of view, there’s also the question of using copyright as a kind of bludgeon to stifle political speech. That’s come up a lot in the campaign when stuff shows up on YouTube that has been plucked from, for example, cable news. Can you tell me about that issue? LAWRENCE LESSIG: What’s basically happening is that very efficient systems that were created for copyright holders to enforce their rights are being deployed in a political way, really to silence speech. So this has happened with John McCain’s campaign. In the primary he used a clip from Fox News, which Fox News then threatened if he didn't take down. It’s happened to him again in the general election. It’s happened to Barack Obama’s campaign in the presidential election.
It’s happened in local races, too, where these absurd claims of copyright have been raised, not so much because anybody actually believes the copyright claims would survive, but because they know that if YouTube, for example, takes down a video for ten days before it’s finally adjudicated whether it can go up or down, it can really interfere with the campaign on the other side.
So it’s become a political tool, a weapon to fight the opponent by censoring their speech, rather than just responding on the merits to what they've said. BOB GARFIELD: Now, a lot of these issues were supposed to have been legislated in the Digital Millennium Copyright Act of 1998, but I gather you think that that law is flawed, to say the least. LAWRENCE LESSIG: Nobody was ever thinking about how important sites like YouTube would be to political speech when they passed the DMCA, almost exactly ten years ago this week. What they missed was that by giving copyright owners such a simple way to get speech taken down, they would create the incentive for this political gamesmanship. BOB GARFIELD: So what’s the fix here? LAWRENCE LESSIG: Well, you know, I think one of the problems we have here is that copyright is trying to do too much. It’s trying to regulate wildly more speech than it needs to. Its function is to create incentives for people to create great new works. So I think part of the solution here is just try to carve a copyright back to protect the work of Lyle Lovett or to protect the work of some great new singer and not worry so much about using it or allowing it to be used to regulate every time some speech gets uttered on the Internet. That’s too much for the law of copyright to bear. BOB GARFIELD: Now, I have never asked this question of an interviewee in eight years, but I'm going to ask it of you. Lyle Lovett? [LAUGHS] What the hell? [LAUGHTER] Where did that come from? [LAUGHS]
LAWRENCE LESSIG: Oh come on. Lyle’s great. [LAUGHS] BOB GARFIELD: Lawrence, as always, thank you very much for joining us. LAWRENCE LESSIG: Thank you for having me. BOB GARFIELD: Lawrence Lessig is a professor at Stanford Law School and author of Remix, published by Penguin.
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