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Air Force Lawyers Fire Strike at YouTube

A Reed Smith lawyer, acting on behalf of the U.S. Air Force, has sent YouTube a DMCA take-down notice demanding the removal of a 30-second recruiting video produced to promote its new Cyber Command, an operation aimed at gaining military dominance in cyberspace. But the letter raises the question: Is there any legal basis for it?

Kevin Poulsen first reported the take-down letter (PDF) Friday at Wired's Threat Level blog, which covers online privacy, security and crime. It was Poulsen who originally posted the video in February, after it was sent to him by the Air Force's head of marketing Keith Lebling. Notwithstanding Lebling's marketing efforts, Reed Smith associate Meredith D. Pikser certifies "under penalty of perjury" in her letter to YouTube that posting the video "infringes the U.S. Air Force's copyrights in this work."

But does it? U.S. government works cannot be copyrighted, Poulsen writes, and he cites Electronic Frontier Foundation lawyer Kurt Opsahl for pointing him to the Air Force's own privacy policy, which says: "Information presented on the Air Force Recruiting website is considered public information and may be distributed or copied." Yes and no, says IP law professor Wendy Seltzer at her blog Legal Tags, if the government created the video, then the DMCA claim is improper. However, the law allows the government to receive copyright assignments, so if an independent contractor created the video, the government may meet the technical requirements of the DMCA. That said, she continues:

Even if the Air Force’s DMCA claim is truthful, however, it’s still a policy overreach. Wired posted the video in order to report on government recruiting efforts; the video’s dissemination is part of that First-Amendment protected discussion, whether it happens on or off government websites. The DMCA makes it too easy to takedown first, think later.

So it appears that as the Air Force seeks military dominance in cyberspace, the question remains whether it will prevail in the virtual battlefield of the law. Copyright experts out there: What say you?

Posted by Robert J. Ambrogi on March 10, 2008 at 08:56 AM | Permalink | Comments (0)


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