How successful would a political campaign be if it decided to sue the TV networks for taking down its videos? Fred von Lohmann, a lawyer at the Electronic Frontier Foundation, said he doesn't know of any campaigns that have done so, but a recent case involving MoveOn.org, left-leaning production company Brave New Films and Viacom helps shed some light on the issue.

Last year, Viacom sued Google over what it said were more than 160,000 YouTube clips that illegally used its copyrighted material. YouTube agreed to take down the videos, and in the process removed a political video from MoveOn and Brave New Films parodying "The Colbert Report." After the video was taken down, EFF filed suit, citing the Digital Millennium Copyright Act [PDF]. The case was quickly settled after Viacom withdrew its objection, saying that filing for the notice in the first place had been a procedural mistake.

A statement on fair use at Viacom's corporate Web site reads, "Regardless of the law of fair use, we have not generally challenged users of Viacom copyrighted material where the use or copy is occasional and is a creative, newsworthy or transformative use of a limited excerpt for non-commercial purposes."

Because Viacom backed down without a court fight, the case doesn't provide a solid precedent for considering a hypothetical legal challenge between a political campaign and a TV network. Still, von Lohmann outlined two big questions that the courts would have to answer, should they at some point tackle a copyright case of this nature.

1) How should courts measure the damages a winning party would receive? The McCain camp claimed it was harmed when YouTube removed its videos in the heat of the election, but von Lohmann explained that "it's hard to measure that in dollars and cents." Still, he said, "this is a serious harm, and just because it's not something you can easily measure, that shouldn't bar damages."

2) Was the takedown a "knowing misrepresentation"? In order for the campaign to win, it would have to prove not only that the video does not infringe copyright, but that the copyright takedown notice was a "knowing misrepresentation" on the part of the network.

Ultimately, von Lohmann said, if the campaigns want to push back on copyright claims, they need to sue. A step down from a lawsuit would be sending a "counternotice" to YouTube asking the site to review the complaint and repost the video. But the DMCA allows two weeks for the other party to respond before it reposts the video -- a lifetime in a political campaign. "What we have found in our experience is that simply sending a counternotice and waiting 10 days does not give the person who sent the notice very much reason to not do it again," van Lohmann said. "If deterrence is your goal, the counternotice is probably not going to do the trick."

On the flip side, copyright experts agree that a TV network has very little incentive or legal basis to sue a campaign if a video reappears after it has sent a takedown notice. But concrete precedent supporting this thesis is thin, said Siva Vaidhyanathan, a professor of media studies and law at the University of Virginia. "Nobody has been so audacious to actually pursue this," Vaidhyanathan said. "It's such an obvious loser of a case to sue a political campaign for infringement. Campaigns are over before a court can hear a motion for injunction. And a court would be very hesitant to enjoin a campaign in the middle of it and disrupt its activities."

One exception Vaidhyanathan cited was from 2000, when MasterCard unsuccessfully sued Ralph Nader over an ad parodying the credit company's famous "priceless" ad campaign.

Overall, the DMCA has been set up to minimize the number of online copyright cases that go to court, Vaidhyanathan said. He predicted this will remain true in the future, as well.

"Artists and networks are going to continue to complain and generate news about the situation," he said. "And campaigns are going to continue hiring lawyers to swat these accusations away. But it's all going to remain a noisy process rather than a legal process."

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