MSNBC is upset that the Obama campaign has used a clip from the ”Ed Show” to buttress an attack on Mitt Romney. The video elbows the presumptive Republican nominee for apparent inconsistencies in his position on the interest rate for student loans. It starts by quoting Romney as supporting an extension of “the low interest rate on student loans. There was some concern that it would expire halfway through the year, and I support extending the temporary relief on interest rates for students.”
Then the video channels MSNBC talent Ed Schultz on the set:
Of course, Romney’s pro-education position is not just at odds with the Republican Party, it’s at odds with Mitt Romney. Romney supports Paul Ryan’s budget, which would cut Pell grants by $170 billion; it would also double student loan interest rates. So Mitt, which one is it?
After another Romney soundbite, the video returns to the “Ed Show”: ”Will the real Mitt Romney stand up on education?”
MSNBC is unhappy about all of this, as the “O’Reilly Factor” discussed in a segment last night. The network has issued this statement:
MSNBC did not grant permission and we have asked the Obama campaign to remove the video of Ed.
It’s important for MSNBC to strut that statement before the public, lest it appear that it’s coordinating its broadcasts with the Obama re-election effort.
But this is America, the land of copyright laws. Specifically, 17 U.S.C. Section 107, known to most folks in this line of work as “fair use.” It outlines the circumstances under which copyrighted work can be essentially borrowed without infringing on that copyright. There are four factors at work in making the call; we’ll evaluate the Obama-Ed clash in light of each one.
Factor No. 1: “The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”
Obama-Ed Analysis: The gist of this test relates to cash — if someone is trying to borrow your stuff to make a buck, then the courts are likely to slam you. That’s not very fair use. If, on the other hand, you’re borrowing the program for other uses, the law takes a more permissive view of the activity. Point, Obama campaign.
Factor No. 2: “The nature of the copyrighted work.”
Obama-Ed Analysis: This prong evaluates whether the work is straight-up factual stuff or more creative stuff. If it’s “just the facts,” well, borrow away — no one can assert ownership of facts. If it’s a more of an original and distinctive work, it’s harder to piggyback on fair use to borrow the goods. Whatever your politics or your legal training, you must concede that the “Ed Show” clip borrowed by the Obama video has some panache to it. That makes it less eligible for fair use. Point, MSNBC.
Factor No. 3: “The amount and substantiality of the portion used in relation to the copyrighted work as a whole.”
Obama-Ed Analysis: At first blush, a lawyer for MSNBC might choose to focus on this consideration. After all, the video is just one minute long, and a pretty substantial chunk of it comes straight from MSNBC’s air. Yet the law doesn’t really care about that particular ratio; it cares about the ratio of the material used to the “copyrighted work as a whole.” According to a legal analyst: “The ratio is tiny --if the Ed Show airs for a full hour, the campaign is using something like 1/180th of the show.” Point, Obama campaign.
Factor No. 4: “The effect of the use upon the potential market for or value of the copyrighted work.”
Obama-Ed Analysis: The law disallows fair-use borrowing if doing so essentially substitutes for or competes with the business of the copyright holder. So is the Obama campaign trying to become a cable-news provider by transmitting this clip? Clearly not. Yet if MSNBC would otherwise license video in such a circumstance, a good lawyer could argue that the Obama campaign is depriving the network of a sale here. Point, neither side.
Whether the campaign wants to promote the video against MSNBC’s wishes, however, is a political consideration, not a legal one. The clip that it pulled, after all, is reflective of the network’s presentation of news and opinion, uniformly aligning with the liberal side of things and quite often with the positions of the White House vis-a-vis its enemies in Washington’s frequent ideological skirmishes. Probably not a good outlet to alienate. (The Obama campaign has not yet replied to a series of questions on this matter. An MSNBC spokeswoman says that as of mid-afternoon, it had not heard from the campaign about its takedown request.)
Fox News’s Bill O’Reilly used the little contretemps to underline what he sees as a distinction between two cable nets. Though the popular host says “everybody is in the tank” for Obama at MSNBC, “Here [at Fox News], they’re all over the place. Every show is different. Every show has a different tempo and a different tone,” said O’Reilly.