The Fair Use Senator

Can Harry Reid really post Sharron Angle’s old campaign Web site?

Harry Reid

Harry Reid is facing the threat of a copyright lawsuit. We couldn’t be happier. Don’t get us wrong. We don’t have anything against Harry Reid. But the occasional willingness to flout the demands of copyright owners is essential to the long-term health of intellectual property law.

The Senate Majority Leader is locked in a tight race for re-election against Tea Party favorite and Republican nominee Sharron Angle. During the Republican primary, the Angle campaign featured a Web site that touted some of Angle’s more controversial stances, including her desire to abolish the Department of Education and phase out Social Security. Although these ultra-conservative positions were boons in the primary, now the campaign perceives them as liabilities for the general election. To win, Angle presumably needs to attract at least some independent voters. Accordingly, she has taken down her old Web site and replaced it with a more polished version that finesses her harder-line views. But Reid was not about to let Angle tack back toward the center without a fight. His campaign reposted a copy of Angle’s old Web site, using the URL Therealsharronangle.com.

Angle’s lawyers sent Reid’s campaign a “cease and desist” letter, asserting that Angle’s prior Web site was her intellectual property and that Reid’s campaign was violating her copyright. Reid’s campaign initially appeared to capitulate. It took down the Web site for a few days. But then it reposted the old Web site with some minor changes. (The online forms that might have collected information about potential Angle supporters are gone.) In a radio interview, Angle responded by declaring her intention to sue to force Reid to take down the site. “Your Web site is like you,” she said, “it’s your intellectual property. So they can’t use something that’s yours, intellectual property, unless they pay you for it or get your permission.” Reid’s campaign asserted a First Amendment right to use the Angle Web site. “It’s called free speech,” a campaign press release said, “and it’s nearly absolute under the First Amendment.”

Unsurprisingly, the legal landscape is more complicated than either side has admitted. Indeed, the dispute between the campaigns lies on the cutting edge of a heated debate among copyright lawyers over the proper relationship between the First Amendment and the rights of intellectual property owners. Although Angle is correct that her Web site is her intellectual property, her rights are not unlimited. The copyright doctrine of “fair use” permits substantial reproduction of that property, for purposes like political commentary or parody, without her permission. On the other hand—and contrary to the Reid campaign’s assertions—his free speech rights are not currently well-defined, and certainly not “nearly absolute” when they clash with intellectual property rights. The Reid campaign’s wholesale reproduction of Angle’s entire primary campaign Web site may run afoul of the notion that fair use usually must transform the underlying copyrighted work. Fair users most often do this by commenting on excerpts of the copyrighted work or by using it as the object of parody. We can think of many justifications for Reid’s extensive use of the old Angle Web site, and his position might ultimately carry the day. But this is an area of law that develops case by case and outcomes are notoriously unpredictable.

In part because of the fuzzy boundaries of fair use, the costs of copyright litigation are cripplingly high. And because copyright damages are severe, the consequences are grave for a “fair user” who guesses wrong that he’ll win in court. Few average citizens can afford to risk being found liable—whereas copyright owners, which are often corporations, stand to lose only lawyers’ fees. The result is that an owner who can make a credible threat of litigation can usually force someone with a fair use defense to back down to avoid a legal fight. And so the actual boundaries of ownership rights become, in effect, whatever the owners assert them to be. And as Angle’s comments demonstrate, copyright owners have every incentive to claim dramatically broader rights than the law actually confers.

The best hope for preventing ownership claims from ever expanding is the occasional willingness of users like Reid to take the chance that a judge will see fair use as they do. More than 15 years ago, the rap group 2 Live Crew requested permission from Roy Orbison to issue a parody of his iconic song “Pretty Woman.” When Orbison refused, 2 Live Crew released the parody anyway and were promptly sued for copyright infringement. The case went all the way to the Supreme Court. In a unanimous decision, the justices held that the fair-use doctrine protected the right of artists to appropriate and make parodies of copyrighted works. It is only through these sorts of challenges that the law of fair use can develop in a balanced way that considers the interests of a range of copyright owners and users. Such balance by the courts carves out the protected spaces for commentary and criticism that are essential to a healthy democracy and culture.

This is why we applaud Reid’s willingness to stick to his guns (to use a Second Amendment metaphor) and continue posting his archived version of Angle’s Web site, even at the risk of a lawsuit. Who knows whether the prospect of a lawsuit is a political winner for him? But either way, this is just the sort of defiance that is necessary if fair use is to become an effective bulwark for First Amendment rights. Occasionally, a little civil (or intellectual) disobedience can go a long way toward protecting others’ freedoms.Like  Slate on Facebook. Follow us  on Twitter.