Intellectual Property Law

CBS claims copyright in open mike tape of Assemblyman Duvall

By Alfred Yen

In a story entitled “Recorded Sex Comments Cost Calif. Lawmaker His Job,” the Associated Press reports that California Assemblyman Mike Duvall resigned after his boasts about extramarital affairs were recorded by an open mike. The story mentioned that the tape had been posted to YouTube, and - like all dedicated academics with inquiring minds - I thought I’d confirm the facts through original source material. Here’s the screen I got back after a Google search.

Apparently, CBS has sent a DMCA takedown notice to YouTube over the tape. It’s an interesting claim on several levels. As an initial matter, it’s questionable whether there’s any creative originality of the sort that supports copyright. The tape came from an open mike left on the desk the Assemblyman was seated at before a committee hearing. What creative selection and arrangement is there in the placement or decision to routinely record such meetings?

Additionally, it appears that the tape was not made by CBS or its representatives. Another YouTube posting (where you can see Duvall and hear parts of his words) indicates that the tape in question was made by the “in-house television station used by the state legislature.”

Finally, of course, there’s a strong fair use argument here.

Now, it is of course possible that CBS has a better copyright claim than I’ve suggested. If it was a tape of a newscast that contained the tape, then the entire newscast probably is copyrightable. That having been said, I can’t help wondering why CBS would have sent a takedown notice. Given the availability of the tape in other places, I doubt that they had any serious copyright related commercial interest to protect. Given Duvall’s status as a public official and the location where the boasts were made, I’m skeptical that he had any serious defamation or privacy claim. Maybe they were worried about claims brought by women Duvall was talking about. Or, even worse, perhaps someone had a political allegiance with Duvall.

Regardless, unless CBS acted to protect a bona fide copyright interest, it looks like the takedown of the tape in question illustrates how copyright can be misused in the digital environment to thwart the public’s ability to see firsthand how its public officials behave.

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Full post as published by Madisonian.net on September 10, 2009 (boomark / email).