Over at Wired’s Threat Level blog, Kevin Poulsen reports on a new DMCA overreach: the U.S. Air Force complained (via outside counsel) (PDF) about his posting of their recruiting video. The post, Kevin says, was initially made at the Air Force’s invitation.
If the government created this work, then the DMCA claim is improper. Works of the U.S. government are not copyrightable. But the statute allows the government to receive copyright assignments, so if an independent contractor created the video, still available at the Air Force’s (non .mil) site, the government could meet that technical requisite of the DMCA.
The DMCA also requires that the notifier assert the posting was unauthorized. Poulsen’s article, however, says the Air Force sent Wired the ad and “thanked THREAT LEVEL for agreeing to run it.” That doesn’t quite square with the DMCA-required statement that the notice-sender “ha[s] a good faith belief that none of the materials or activities listed above has been authorized by the U.S. Air Force, its agents, or the law.”
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.