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Romney Defies Fox News' Ban On Use Of Its Debate Footage
The Romney campaign has sent a letter to Fox News saying that they will defy the network's request that all the GOP campaigns "cease and desist" from using Fox debate footage in ads or on their web sites, I've just learned.
Today the Romney camp went up with a new ad bashing Hillary. As Eric Kleefeld noted below, the ad contains a smattering of that debate footage -- despite the fact that Fox's lawyers sent a letter to the GOP campaigns last week demanding that they refrain from using it.
So we checked in with the Romney campaign to see what was up. And Romney spokesman Kevin Madden confirmed that the campaign has informed Fox that they were defying the request.
It's an interesting move by the Romney camp, because by defying Fox they're taking on a network that wields great power in GOP primary politics. Meanwhile, the move is likely to win Romney plaudits from liberals and conservatives alike, because as we noted here yesterday, right-wing bloggers have allied with MoveOn to wage a public fight against Fox's ban on the use of debate footage.
Madden said the campaign was on "very strong legal ground" and gave Election Central portions of the letter the Romney campaign's lawyer sent to Fox in which he argued that Romney's use of the footage is "the very essence of political speech protected by the First Amendment."
More from the letter after the jump.
From the letter to Fox by Romney lawyer Ben Ginsbert:
Indeed, the Romney campaign's use of a very short debate clip to deliver a message about Governor Romney is the very essence of political speech protected by the First Amendment. In addition to the First Amendment, statutes and numerous court decisions protect a political campaign's use of this material in this fashion.
And:
As for the law, the First Amendment's right of free speech protects the use of relevant information such as this in the public discourse. The campaign's use of these statements places this very relevant information in the marketplace of ideas that is a protected part of the discussion of the public policy positions of candidates for President of the United States.
And:
Importantly, the amount of video used by the campaign is only a snippet of the 90 minute coverage of the debate between the candidates. Furthermore, the campaign's creative interpretation of the information contained in the video footage provides the voting public with important information they need to make a decision in this important election.And:
By contrast, all the Presidential campaigns, including Romney for President, are non-profit entities under Internal Revenue Code Section 527. As such, no campaign commercially benefits from the limited use of debate snippets in its communications, whether on a web site or in 30- and 60-second broadcast messages.
this is why Romney is doing so well. he knows how to run a campaign.
by defying Fox he gets extra media coverage.. the only reason he is struggling nationally but doing great in NH and IA is cause of lack of name ID.
he is running the best campaign out there. Huckabee is doing good too but he just doesn't have the money.
i think its gonna be Romney/Huckabee ticket which would be the weakest ticket we've seen the republicans field since Goldwater.
November 2, 2007 12:09 PM | Reply | Permalink
Although I detest the guy down to his underwear, this is a good, shrewd political move, wrapping oneself in the "protections of the Constitution" against a well-hated piece of the well-hated MSM.
So, what's he got to lose? If he's the nominee against Hillary, what is Fox gonna do, slant for her?
And maybe Hillary making nice with Rupert early in her campaign wasn't a bad political move on her part either, eh? That's the only way that Romney maybe gets burned on this one - that Murdoch stays more neutral in GE as strategic policy. Could happen. He knows his bread needs to be buttered in Washington.
Helps the Dems win so I'm all for it.
November 2, 2007 12:14 PM | Reply | Permalink
Interesting that Ginsberg's letter wraps this all in the First Amendment, but apparently skirts by the copyright issues.
FNC has a right to protect its copyrighted material, and a debate it hosts and broadcasts is copyrighted material. The candidates all know that going in.
This isn't a legal fight...FNC wins that. This is a political and public relations fight, with Romney wrapping himself in the flag and daring Fox News to light him on fire.
November 2, 2007 12:48 PM | Reply | Permalink
The good news would be that the Right Wing Noise Machine is losing its discipline. May they punch each other silly.
Romney is about the phoniest national candidate ever. But what is the real reason for Fox to pick a fight with him, or, he with Fox ?
November 2, 2007 1:23 PM | Reply | Permalink
right down to his special Mormon underwear?
be interested to know if R has always been a champion of free speech
November 2, 2007 1:23 PM | Reply | Permalink
FNC has no copyright in what the candidates say or in their images. The debates are not scripted events and FNC doesn't own them. They are news events. And in any event Romney has a fair use right to use this footage.
November 2, 2007 1:23 PM | Reply | Permalink
Smart... very, very smart.
November 2, 2007 1:25 PM | Reply | Permalink
I think it may fall within one of the fair use exceptions to copyright law.
November 2, 2007 1:28 PM | Reply | Permalink
The last argument about it not being commercial use is also why copyright protections shouldn't apply.
November 2, 2007 1:30 PM | Reply | Permalink
Only Romney was smart enough to consult his lawyer.
November 2, 2007 2:46 PM | Reply | Permalink
Edwards is doing the same thing with the clips of the Dems debate, in his version of the truths about Hillary
November 2, 2007 3:10 PM | Reply | Permalink
Somebody must have told Romney about the doctrine of fair use. It allows one to use bits and pieces of copyrighted material. Copyright owners have been trying to eliminate the right.
November 2, 2007 4:21 PM | Reply | Permalink
Umm, where have you seen that "Copyright owners have been trying to eliminate the right" to Fair Use? Show me a link where there is any significant effort by copyright owners to "eliminate" Fair Use. (As distinguished from trying to defend their legitimate copyright.)
Authors and other copyright owners know they benefit from Fair Use frequently themselves.
Fair Use is judged on a case-by-case basis on 4 criteria:
1. the purpose and character of the use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market.
Fair Use is always somewhat flexible and in the eye of the beholder. This may give rise to the idea that "copyright owners have been trying to eliminate the right" because there can be disagreement on the 4 points, and the court decides in the end. However, arguing the merits of an individual case of possible infringement is far and away different from the accusation that copyright holders who wish to defend their own work are "trying to eliminate" Fair Use.
Without going into detail about each of these points (google Fair Use copyright for multiple overviews), the use of Fox's debate footage in campaign ads is clearly Fair Use at its finest. Speaking as a copyright holder who makes a living BY MY OWN WORK, your claim that copyright owners have been trying to eliminate Fair Use is baloney.
November 2, 2007 4:55 PM | Reply | Permalink
Fox news already has a favorite son...Rudy Giuliani. It's a myth that Fox News is fair and balanced. They have shown their true colors of late....especially Sean Hannity. He gave up his "principled stance" when he sat aside his pro-life position to support Rudy. He has contributed to the division of the Republican party by picking one big issue for the conservatives and choosing to ignore it's importance, thereby widening disunity of the party.
So... do what needs to be done Mr. Romney, don't let them push you around.
November 2, 2007 5:21 PM | Reply | Permalink
Very true MJN about Rudy being Fox's favorite son. Rudy has had meetings with the Fox editorial team and it clearly shows in the way they continue to discount Romney on Special Report With Brit Hume, while glorifying Rudy in the process . Brit thinly veils his disgust with Mitt on the round table and dares any pundits to speak remotely favorable of Romney. I first saw this dynamic in an interview with Mitt after the Ames poll. Chris Wallace came after Mitt hard and Romney shot back, by the end he had Wallace reeling. You could feel the hate from that point on in debates and Special Report. It will be interesting to watch this play out. Go Mitt.
November 2, 2007 6:11 PM | Reply | Permalink
AMJ: copyright holders have been aggrandizing their so-called rights for many years. There are a lot of papers on this issue. Here is one: http://www.publicknowledge.org/node/1244
Its unfortunate that so many people simply accept without questioning the legitimacy the faulty assertions of the content producers. Even the use of "BAN" in the title of article is wrong. Content producers such as Fox News does not have a right to "BAN" anything, they are not a government agency. They do have a right, if they feel that Romney is violating their copyright to take him to court.
It is unfortunate today that we seem to live in a society where corporations seem to be able to believe that they can create law, judge the user of "their" content, and then "jail" the content user on their own volition. Due process has gone out the window.
November 3, 2007 10:32 AM | Reply | Permalink
Or it could be just staged between rep candidates and fox noise. that I send you this notice and you defy. we both get publicity. This way they help calm down clintons.
November 3, 2007 5:02 PM | Reply | Permalink
hahahahaha... I see Romney consulted his attorneys!!! next he'll be consulting attorneys to bomb Iran.. this guy has no clue what the Constitution is!
November 7, 2007 4:56 PM | Reply | Permalink
While I'd never vote for him, it's hard not to be impressed with Romney's courage. Hope the Dems learn something from this, about standing up for themselves, instead of caving.
November 17, 2007 2:09 PM | Reply | Permalink
Uh... Romney IS AN ATTORNEY! Shows how much his detractors really know about him... nothing... basically liberal media picture of him.
Mitt Romney graduated top of his class in both business AND law at HARVARD. (Maybe you've heard of it? It's supposed to be a pretty good school).
Of course Romney knows the legal ins and outs of this issue.
It's also quite amazing how ALL of the attacks against Romney are either completely PERSONAL in nature or INANE GENERALIZATIONS and SPOUTING.
Anyone with a major problem with Romney needs to take a chill pill (and maybe a time out) and reexamine Romney based on the ISSUES. When you do that, he is the clear BEST CHOICE.
January 7, 2008 3:55 AM | Reply | Permalink