A California Senate candidate is using a Don Henley song in a campaign video on YouTube, and when Henley sued for copyright violation, the candidate fired back that it was his first amendment rights to use the song. It seems he failed to understand the nuances of the Digital Millennium Copyright Act. Maybe he should be complaining to the RIAA instead.

Some Background

CNN reports that Henley got his feathers ruffled when he heard that California Republican Senate candidate Charles DeVore used two of his songs, "The Boys of Summer" and "All She Wants to Do Is Dance" without permission. DeVore, according to a CNet article who is a Republican, sees it as quote "liberal goon tactics" unquote and a violation of his first amendment rights.

Where Do You Draw the Line

This case did force me to think about where you draw the line on copyright ownership, and a candidate using a campaign ad is a grey area. I think we all can agree that if you are using a song for commercial purposes, you have to pay the owner. Where the debate comes in is when you are dealing with situations where there is no money changing hands or you are using pieces of the song in a remix fashion. In his recent book, Remix, Lawrence Lessig looks at copyright law in the age of the internet and gives many interesting examples of over-zealous record company and RIAA lawyers.

There's Lessig's famous example of a mom shooting a video of her toddler dancing with a Prince song playing on the radio in the background. When the mom posted the video on YouTube, she soon got a cease and desist order from lawyers at Warner Brother's records who claimed she was using the Prince song without permission. The mom was not out to make money here. She simply wanted to share a cute video and the record company reaction in my view (and Lessig's) was way over the top.

Politics, Schmolitics

So now we have this case. What makes this case particularly difficult, especially in the case of The Boys of Summer, is that DeVore used the song and created a parody using the song's melody and his own words to make fun of his opponent Democratic Senator Barbara Boxer. Parody has traditionally been protected by the first amendment, so it's difficult to say where this falls.

Regardless, Mr. DeVore got a swift taste of the Digital Millennium Copyright Act when YouTube took down his videos at the request of the copyright owners. There is more than a bit of irony here given that the Republican party has traditionally protected the interests of corporations, and a candidate who according to his web site is proudly conservative, would have a issue with laws designed to protect the rich and powerful.

Who Wins?

In this case, it's hard to say where it will fall because DeVore is clearly using the songs without the permission of the copyright owner, but he has also parodied at least one of the songs, and he is a candidate for U.S. Senate, which could be construed as a commercial venture. So who's right here?

There are no easy answers, but it's clear that the current laws protecting copyright in the interests of the corporations (instead of the artists) is clearly out of whack and it would be interesting if a conservative Republican candidate were the one to break the back of the DMCA.

I think you have hit the nail on the head when you say "there are no easy answers" to be honest :)

And in this case when you throw in the political angle plus the parody, it's even harder than typical copyright matters.

How is this different than file-sharing? Both are non-commercial uses of copyrighted material. Sharing someone else's content with a large audience.

Personally, I think all non-commercial use should fall under fair use, but that's not the situation legally at the moment.

I'm not sure I agree with either of your statements. File sharing is often stealing somebody else's property. Fair use is when you use something as part of something else, me quoting from an article for instance. If I use the whole article without permission, that's plagiarism unless there is a Creative Commons license on the material to share (usually with attribution). As Lessig has written a reasonable copyright law protects artists and encourages them to produce and distribute work. Without it, anyone could slap their name on something that took years to write or make and there would be no legal recourse. Where it starts to get ugly is when the government becomes more concerned with protecting the rights of the likes of Disney (which has no problem using public domain stories like Aladin for profit making ventures) and large record companies and leaves the creatives in the dust. We need to find a middle ground between a wild west and the current situation that stifles creativity and sharing.