Warning: do not use political hearing video for a political purpose

Guest Post By Andrew Dhuey

Like most Americans, I watched the House Judiciary Committee hearing on H.R. 3309, the Innovation Act, this past Tuesday. While Members of Congress and witnesses lamented abusive assertions of patent rights, an ominous warning lurked below their talking heads:

Yes, that’s right – I am not allowed to use this Congressional hearing video for a political purpose. I am apparently free to use this for entertainment or religious purposes, but I would have to turn away lucrative commercial sponsorships. Fox News and MSNBC should think twice before using this video – only bona fide news programs allowed.

But seriously, Judiciary, this is embarrassing. On what basis could you possibly restrict the use of this video? Why would you even want to do that?

Let’s start with copyright law (psst…that’s within your jurisdiction, Judiciary!). The video is a production of the Library of Congress. That means no copyright. 17 U.S.C. § 105 (“Copyright protection under this title is not available for any work of the United States Government”). Even if the video were copyrighted, imagine the First Amendment implications of restricting the political use of a public, political hearing video.

Perhaps Judiciary has in mind a contractual theory for this restriction. By watching the video, I am agreeing to this use restriction. That would be quite a stretch, though. If you sue me on that theory, Judiciary, I’m going to call you a “Video Troll” and lobby you to pass legislation that prevents abusive use restrictions on legislative hearing videos.

Maybe the most plausible explanation for this use restriction is that it is there by mistake. Please correct that mistake, Judiciary. It looks bad for the people who make intellectual property laws to impose a legally unenforceable use restriction on a public hearing video.

Andrew Dhuey is an appellate lawyer in Berkeley, California.

25 thoughts on “Warning: do not use political hearing video for a political purpose

  1. Google is your friend!Rules of the House of Representatives:(e.g., Congressional Record vol. 145, no. 1 (Jan. 6, 1999), page 9, Rule V.2): (c) Coverage made available under this clause, including any recording thereof– (1) may not be used for any political purpose; (2) may not be used in any commercial advertisement; and (3) may not be broadcast with commercial sponsorship except as part of a bona fide news program or public affairs documentary program.link to beta.congress.gov

    1. Thank you, Cassius Dre. Those are House rules, binding on its members. This use restriction appears to restrict everyone’s use of the video. I hope the House doesn’t think its own procedural rules trump others’ First Amendment rights.

  2. It seems that some testimony made before certain committees of the US Congress can taint the official record with copyrights.U.S. GOVERNMENT PRINTING OFFICEWASHINGTON : 197xFor sale by the Superintendent of Documents, U.S. Government Printing OfficeWashington, D.C. 20402 – Price $x.xxCopyright © 197x by xxxx x. xxxx.All rights reserved under International and Pan American Copyright Conventions. No part of this work may be reproduced in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the author.Permission to reprint this work has been granted the U.S. Government in connection with its publication of hearings before the U.S. Senate, Committee on xxxx, and pursuant to title 17, U.S.C., sec. 8, para. 2, which provides in relevant part:“The publication or republication by the Government, either separately or in a public document, of any material in which copyright is subsisting shall not be taken to cause any abridgment or annulment of the copyright or to authorize any use or appropriation of such copyright material without the consent of the copyright proprietor.”

  3. All this reminds me: whatever happened with the lawsuit about copyright violations for submitting “unauthorized” copies of prior art to the USPTO?

  4. Playing devil’s advocate – This is the same thing as the NFL saying that redistribution of any “pictures, descriptions or accounts of the game” is prohibited. Obviously they lack the power to control the dissemination of facts, but they do have the power to prevent the redistribution of what is actually shown on your screen, since your screen has creative commentary (currently happening description and previously occurring account) and creative use in its choice of shots (pictures). Whether anything creative occurs with respect to this video is another issue.”For a political purpose” is more interesting. Singers have prevented political candidates from using their songs. But using music to convey something about the candidate is clearly a “political purpose”. Certainly the idea that the video could not be shown to argue for or against the position would have first amendment issues. But not all “political purposes” prevent copyright use, or Rush Limbaugh would be free to use any song he wanted while another radio station that only plays music would have to pay for the rights.If copyright exists (the copyright being the choices of the videographer, not the language of the federal employees themselves), I could understand how the statement, narrowly construed, would be an okay notice.That leaves the question of whether 105 operates in a work for hire situation (assuming the videographer is a contractor and not a federal employee) for the work to have no copyright protection at all, or simply copyright protection that remains with the author subject to an exclusive license to the people. That would have to be fact specific, right? I mean certainly the government could craft a contract that would keep the rights with the author.

    1. It would really be something if the Library of Congress hired a contractor to make these videos *and* allowed that contractor to impose these use restrictions.

      1. Why so? The underlying facts aren’t subject to copyright and the language used by the committee, even if it was creative, wouldn’t be protected under 105.There is no mechanism by which the use or distribution of a transcript, the audio, or the underlying issue of debate could be curtailed. Giving the notice the full breadth it could possibly have, all it does is prevent people from using the video.Assuming he did something creative with the video, it is both something that normally would be subject to protection and something that is unnecessary for a political discussion of the underlying issue, so I don’t see what the problem with that is.Like I said, think of it like a NFL game – you can’t prevent a sports columnist from reporting the score, nor of giving his impressions of the players or the game, nor of someone else distributing video that they shot at the game, those are simply facts and opinions not subject to creative ownership by the NFL. You can prevent the actual rebroadcast of the game broadcast though, because now you’re using the expressions of announcers and videographers whose work is subject to copyright (whether it remains with them or by contract transfers to the NFL).Separate out the actual contribution by the federal employees (which is the only thing the public cares about) with the contribution by the videographer (which nobody cares about and is useful only for a certain style of tv communication) and then ask which is being denied to you.

        1. My point to you on this wasn’t about legalities. I meant really something *politically* if the Library of Congress authorized a contractor to impose these use restrictions. Even assuming they are enforceable, they would be outrageous on policy grounds. The LOC would be using a third party for simple video production to impose use restrictions the government itself would never be able to impose.

          1. If you agree we’re discussing the video and not the underlying transcript, I find it hard to declare it outrageous. LOC doesn’t have to provide the video. In fact, there are plenty of places, including the Supreme Court, where you couldn’t tape yourself even if you wanted to.If you’re a government contractor you don’t want someone making royalties (commericals/in a commercial) off of what you are being paid a flat-fee for. You also don’t want it used politically since that jeopardizes future work.There’s an exception for news, but even if there wasn’t, we’re talking about the difference between a 10 second video clip on the air and a 10 second audio clip with a picture of a guy’s face and transcripted text.If you think that LOC should bring it in house and remove the restrictions, I can get behind that. If you think it’s a dastardly plot to loophole something out of the public domain, I have to disagree.

            1. If you’re a government contractor you don’t want someone making royalties (commericals/in a commercial) off of what you are being paid a flat-fee for. You also don’t want it used politically since that jeopardizes future work.I’m sure there are plenty of people out there who would be happy to sign a contract with the government for this work, take their flat-fee, and get on with their lives without worrying about whether someone is “making royalties off it.” Let’s hire those people instead.

            2. Yes, Congress doesn’t have to put out videos of hearings, but it does in fact do that. Once it makes that choice, it would be outrageous to allow Congress to prohibit the use of the video for a political purpose. Members of Congress would effectively be saying “you are free to watch and listen to us on this video, but you are not free to use this video for a political purpose — especially not if it’s to *criticize* us.”

            3. People would be criticized for what they say, not how they look saying it. There’s clearly no protection for what they say.It’s true, as 6 is arguing, that in all likelihood there is so little creativity and so much fact that a political use would swallow any rights that would enure, but that is a balancing test once we agree there are rights. You’re going further and suggesting that 105 prevents the rights from forming.This is a fundamental difference, since it seems like you’re saying that because you are criticizing the government that the first amendment shields your unrelated use of (what we’re assuming to call) copyrighted material. You’re suggesting that if Bob Dylan writes a protest song that I can sing it as well, so long as I’m singing it in actual protest. But I can’t, Dylan is empowered to stop me, and him stopping me is not an infringement of my first amendment rights because it is not the government who is acting.You’re right to say there’s no real reason why you should be prevented from using the video to comment as you see fit. I agree. (Though a commercial use is less clear) But let’s not take a fact-specific case and expand it improperly. The man did work. The work is at least arguably creative. He may have copyright rights. If he does, he gets to assert them. There’s nothing wrong with that. Had Congress commissioned him to paint a mural or sculpt you would not argue so.Homer: OK, from here we star-wipe to a glamor shot of Flanders paying his bills, then we star-wipe to Flanders brushing his— Lisa: Dad, there are other wipes besides star-wipes! Homer: Why eat hamburger when you can have steak?

            4. The man did work. The work is at least arguably creative. He may have copyright rights. If he does, he gets to assert them.Or he doesn’t have those rights and he can try to assert them but he fails miserably. This kind of stuff is exacty the kind of thing that belongs in the public domain. And once it’s in the public domain, it’s free for anyone to use, for whatever person they want. If they want to sell it to people, that’s perfectly fine. Or if they just want to give it away with a tiny ad in the corner of the computer screen, that’s also perfectly okay. The more easily and readily available such information (incuding visual, sonic and textual content) is for everyone, the better off we’ll all be.Had Congress commissioned him to paint a mural or sculpt you would not argue so.Speak for yourself. He makes a sculpture with taxpayer dollars, that thing belongs to me just as much as it belongs to him. Why should I have to pay him royalties for a bilion years to make, e.g., minature copies of it and sell it to people?

            5. I find the whole Congressional video contractor idea interesting enough to explore with you, RandomGuy, but neither of us has any reason to believe that it’s anything but hypothetical. From all appearances, this is a production of the Library of Congress, with no private contractors involved.

            6. That’s because it is outrageous. It’s a typical in terrorem boilerplate warning that will never be enforced, but on the margins, will prevent some people from incorporating the video into their YouTube videos.Anyone who’s seen one of the many proliferations of “documentaries” these days (there are a ton on NetFlix), exposing supposed corruption or touting some outrageous conspiracies, are basically paste-pot videos of politicians at these hearings showboating. I suspect the boilerplate warning is designed to make it harder to incorporate these hearings into these kinds of documentaries, or worse, make distributors reluctant to carry them.But it is frivolous, lacking in any arguable merit, to say there is some right to restrict the use of these videos. Even assuming there was some theoretical basis for copyright protection here (I don’t even know who would have standing to register the copyright), it would be paradigmatic fair use, no matter how it was used. Any court will find that use of those videos, no matter how used (even in Torture Porn videos for example) will be fair use.

        2. I don’t see any “creative expression” in the documentation of those hearings. There’s no commentary. No detectable editing decisions. It’s about as “creative” as a surveillance camera video. Given the undeniable public interest (and right) to know what is happening at these hearings I’d suggest that the “warning” about use of the video simply be ignored (except to mock it or question it). It’s unenforceable. And if the “contractor” doesn’t like that, he/she can go stuff it.

  5. More on this issue here:link to publicknowledge.org…and from way back in 2009:link to eff.org…There seems to be some strange theory floating out there that restrictions on the use of public domain non-copyrightable information can be put there by a third party who is carrying or transmitting the information. I don’t believe it matters where the public domain information came from, as long as it hasn’t been altered in a material way (which would not include associating a trademark “stamp” or some sort of “warning” with the information).

  6. “Like most Americans, I watched the House Judiciary Committee hearing on H.R. 3309, the Innovation Act, this past Tuesday.”You’re a funny man, Mr. Dhuey.

  7. ” I’m going to call you a “Video Troll” and lobby you to pass legislation that prevents abusive use restrictions on legislative hearing videos.”Lulz. Come on though man you know that was just some boilerplate they put in there.

    1. I would love to know how that restriction got there. I promise confidentiality if someone who knows calls me to discuss (510) 528-8200. As for boilerplate, if that’s right, for what context was this language originally written?

  8. Bizarre.It seems possible that the House Judiciary Committtee could, by its own rules, limit its own use of the video (or the use of its members) … I wonder if that’s who the message is intended for and if there was some confusion somewhere down the line. Good catch, in any event.

  9. The First Amendment is a limitation on Congress. It doesn’t say anything about the House Judiciary Committee.It is about time that the politicians recognize that politics has no place in government.

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