The “documentary” Plandemic and press conferences from “America’s Frontline Doctors,” to give two recent examples of COVID-19 misinformation, are unambiguously bad for the United States and the world. But they are constitutionally protected speech. Youtube, Facebook, and other large online platforms can remove it, but this can’t stop other outlets from publishing it.
And, as “works of authorship fixed in [a] tangible medium of expression” they’re absolutely eligible for copyright protection.
In the not-too-distant past, it was possible to sideline and ignore blatant misinformation, conspiracy theories and other forms of otherwise-protected speech and limit their spread. This is a fantasy today, and thus we must rely on others to get down in the dirt and debunk. And if we can’t (and shouldn’t) restrict the speech of grifters and ignorant fools, we must do everything to ensure those doing the Lord’s work of refuting them aren’t themselves restricted.
What does this have to do with fair use? If I own the rights to a piece of propaganda, I may assert those rights against those making unauthorized reproductions. This extends not only to wholesale copying, but any use of that work in another video.
Of course, rebuttal videos would almost certainly qualify as fair use. But that wouldn’t stop the rights holder (or an automated copyright filter) from taking it down. The user could assert that their work isn’t infringing, of course, “[b]ut that defense,” as Justice Roberts wrote in the opinion for Georgia v. PublicResource.org, “designed to accommodate First Amendment concerns, is notoriously fact sensitive and often cannot be resolved without a trial.”
Even if lawyers never get involved, it is a serious inconvenience to restore a work flagged for infringement, let alone file a DMCA counter-notice. And, if a site has a system like YouTube’s where a certain number of “copyright strikes” results in the deletion of a user’s channel (and for many, their livelihood) it’s tempting to avoid making use of the original work in the first place.
Let’s take the example of the conspiracy theory documentary Plandemic. The results will vary from user to user, of course, but searching on YouTube I found that the videos explicitly debunking Plandemic, several of which use long clips, outnumber those even vaguely in support of it by a margin of at least 4:1.
To my knowledge, nobody has been on the receiving end of a DMCA takedown notice or any other form of copyright filtering for making responses to Plandemic. But these harms are not hypothetical. Dr. Drew Pinsky made several laughably false claims about COVID-19 and then claimed copyright infringement against a compilation of those claims.
The risks of abusing copyright law against those fighting misinformation is real, and we would all do well to acknowledge this in the broader debate surrounding online copyright infringement and the tools used to pursue it.