On Monday, a federal court decided that a monkey cannot sue for copyright protection after an animal rights group sued on behalf of Naruto, a monkey living on a wildlife preserve who took photos of himself after a photographer left a camera behind in his enclosure. In its ruling, the court asserted that an animal cannot sue for copyright protection because it lacks the ability to understand how copyright works.
And that brings me to Montana’s Secretary of State Corey Stapleton, whose office filed a copyright claim against me last week because I posted a video his office produced as a public service announcement for the people of Montana. You might recall that this blog posted a piece pointing out that it was troubling for Montana’s chief election officer to encourage Montana voters to invalidate their ballots by signing them, yet another sign of Mr. Stapleton’s lack of basic competence for the job he was elected to do.
Over two months later, the Secretary of State’s office affirmed, under penalty of perjury, that my post violated copyright protection, which led to YouTube taking down the video.
To suggest that a constituent would be in violation of copyright for posting a publicly-produced public service announcement defies logic and the law. Montana’s constitution offers one of the nation’s strongest rights for the public to be informed about the workings of government:
No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.
And surely the public has the right to view and disseminate videos produced by government officials, particularly if the video in question was designed to inform the public. While Mr. Stapleton never shared the video on his collection of amateurish, self-promoting videos that have received fewer than 1,500 views, its purpose was to let Montanans know how Mr. Stapleton believed they should vote.
We paid for the video, we paid for the time to produce the video, and we paid for the staff who presumably had to endure watching Mr. Stapleton film the video. Because we paid for the video, we own the video and Mr. Stapleton has no right assert copyright protection over it to avoid embarrassing himself.
Copyright exists to protect commercial interests, to encourage people to produce work knowing that someone cannot steal their labor and deprive them of their just compensation. Either Mr. Stapleton produced the video for his own gain, justifying a copyright assertion but violating the public trust and breaking the law, or he produced it for the public good and cannot claim it is a protected work.
Ultimately, this story is more important than that, once again, Mr. Stapleton has made a mockery of himself and his office. The copyright claim Mr. Stapleton is asserting, if permitted, would allow government officials to prevent the public from sharing information with their fellow citizens. In fact, as early as 1895, the federal government has held that its government publications cannot be copyrighted, for the express purpose of protecting the public’s right to know.
It’s also troubling that Mr. Stapleton is using a sham copyright claim to protect his image given his abuse of public resources to promote himself and his future candidacies. Stapleton, as we have documented before, is using his state web page to promote a personal, partisan Twitter account, has co-opted the state seal for his own logo, and is using staff time and resources to travel the state and promote his election prospects online. That the mixture of his public and political roles led to the production of a video likely to embarrass him is disconcerting and should lead to a deeper investigation by the press into just how Mr. Stapleton uses his budget. but it certainly doesn’t insulate him from well-deserved ridicule.
Finally, it’s troubling that Mr. Stapleton is using his office to attempt to silence a critic. Filing a copyright claim under the Digital Millennium Copyright Act (DMCA), as Stapleton’s office did, is no trivial matter. It wasn’t just his office that had to assert, under threat of perjury, that the claim was true. In order to contest the claim, I had to affirm, under threat of perjury, that it was not and acknowledge that the next step could well be a date in District Court. After I filed my counter-claim, Stapleton and the SoS office have 10-14 business days to file notice that they have taken court action against me:
Upon forwarding your counter notification to the claimant, we will allow them 10 – 14 business days from this date to respond with evidence that they have taken court action against you to prevent the reinstatement of the video(s) in question.
That’s a troubling abuse of government power and resources. If Stapleton and his office follow through and file suit against a private citizen for posting a public document, it will certainly have a chilling effect on others who want to expose and report on government affairs even though their suit will likely be laughed out of court.
It’s also worth noting that I have e-mailed and called the Secretary of State’s office and no one will return my call. Eight days ago, after I received the copyright takedown notification from YouTube, I issued a public records request to Mr. Stapleton, his chief of staff, and his Communications Director. None have responded.
Open access to view and widely share records is fundamental to democratic oversight of government officials. Mr. Stapleton made an embarrassing video that demonstrated his weakness as an elections officer. We certainly have the right to know that, and he certainly doesn’t have the right to use his office to intimidate or silence a critic.
Even Naruto would understand that.