Speaker Pelosi's Copyright/Trademark Problem

The problem is that at Speaker Of The House Nancy Pelosi’s new blog, The Gavel, features a lot of video, nearly all of which is C-SPAN content.

The Republican Study Committee (RSC) released a document about the Speaker’s use of copyrighted/trademarked C-SPAN material on a Congressional website today, which was based on conversations that RSC staff had with Barry Katz, the Manager of C-SPAN Video Assets (and the employee identified as being directly responsible for answering questions to Congress about the use of C-SPAN material). Later, Bruce Collins, the Corporate Vice President and General Counsel of C-SPAN, said that the information provided by the C-SPAN employee to the RSC was incorrect. The implication of Collins statement is that Pelosi’s use is not a violation of their copyright.

The problem with Collin’s statement is that it really flies in the face of C-SPAN’s history of sending take-down notices to sites using its content. C-SPAN’s web site indicates that you may not stream C-SPAN content, which Pelosi is clearly doing.

C-SPAN does not permit the following uses:

Duplication licenses (ask about bulk copies fees)
Any posting or streaming from an Internet site
Airing on public access or local cable television channels
Fundraising Use
Commercial/Advertising

C-SPAN zealously and actively monitors and protects its intellectual property, including the video it produces and C-SPAN registered service marks and logos. C-SPAN is a private, nonprofit organization. It does not, and never has, received any government funding. C-SPAN video is not in the public domain.

This section from Wikipedia explains how public domain footage comes under C-SPAN’s copyright.

C-SPAN maintains an intellectual property enforcement policy “zealously and actively monitors and protects its intellectual property”, C-SPAN also states “C-SPAN video is not in the public domain.”[2][3] As an exception, teachers are granted a limited in-classroom license. [4] Most C-SPAN footage is available on their site for around two weeks prior to entering into C-SPAN pay for access archive where usage is restricted and must be licensed. In Senate and House chambers, live feeds from government-owned recording equipment is released into the public domain as determined by the Speaker and Senate Rules and Administration Committee, respectively.[5] C-SPAN treats archives of the government produced public domain content as copyrighted and it is subject to the same restrictions as other C-SPAN content in the pay for access archive.

C-SPAN has engaged in numerous actions to stop parties from making unauthorized uses of their content online including cases where the footage is the House and Senate proceedings. For example, Dem Bloggers received a take down request for clips they had posted. [6] In February of 2006, WRPI’s Dennis Karius was fired for airing copyrighted audio from C-SPAN’s web stream on his radio program. [7] In May 2006, C-SPAN requested the removal of the Stephen Colbert performance at the White House Correspondent’s Dinner from YouTube while allowing it to remain on Google Video [8], causing concern from web bloggers. [9]

Websites such as metavid make House and Senate video records freely available. C-SPAN contested metavid usage of C-SPAN video which resulted in metavid taking down portions of the archive which were produced with C-SPAN’s cameras while maintaining an archive of government produced content. [10]

On December 14th 2006 C-SPAN wrote an open letter to Speaker Designate Nancy Pelosi requesting that floor proceedings be covered by C-SPAN cameras. This would put the floor footage under the same restrictive license as C-SPAN produced content.[11] The request was denied [12]

So far Pelosi is up to 255 videos hosted on YouTube – nearly all of them C-SPAN content.

Pelosi has the power to effect the terms of use of video shot with government owned equipment, but she doesn’t have the power to take for use material that has C-SPAN’s trademark affixed – which she has clearly done. For that she must get a “Special Use” license. The cost of such license is unknown, but I have a call in to C-SPAN to find out what it would cost and if the Speaker’s office is paying.

Another possibility is that Speaker Pelosi is posting these video’s with C-SPAN’s consent, meaning that C-SPAN is essentially giving her and “in-kind” donation of the material. I’ve also asked what the material she’s posted is worth..

Finally, it’s possible (and likely) that Pelosi is posting the material without C-SPAN’s consent and they are declining to act as they have on numerous occasions before. In that case she is clearly getting preferential treatment…

I’m of the opinion that the content that C-SPAN has aggressively worked to protect over the years really should be available to the public, and this may ultimately help the next blogger who gets a take-down notice from C-SPAN’s lawyers. The real question in this case is would C-SPAN be so generous if if wasn’t the Speaker’s office posting the videos?

We intend to find out…

Update: There’s been a MAJOR update to this story.

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