Mike wrote: “And someone in the McCain camp could have legally covered the song, paying the correct compulsory license as well — and then potentially used that version in a commercial.”

This is a complete misunderstanding of the law. First, the allegedly unauthorized use concerned both Browne’s sound recording and Browne’s musical composition. Thus, creating a cover version would not have protected the defendants. There would still be a claim for unauthorized use of the musical composition.

Second, nowhere in the law or jurisprudence is it even suggested that “fair use” includes use in a political campaign. This was no difficult question. Examples of activities that courts have regarded as fair use include: (a) quotation of excerpts in a review or criticism for purposes of illustration or comment; (b) quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; (c) use in a parody of some of the content of the work parodied; (d) summary of an address or article, with brief quotations, in a news report; (e) reproduction by a library of a portion of a work to replace part of a damaged copy; (f) reproduction by a teacher or student of a small part of a work to illustrate a lesson; (g) reproduction of a work in legislative or judicial proceedings or reports; (h) incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.

Saying that someone was engaging in “political speech” is not a “fair use” argument. The question is the PURPOSE to which the reproduction is put (see above). The defendants were not using the song for comment, criticism or education. They were using it to inspire people to vote for Sen. McCain by associating him with the sentiments and melody of the song. This is not a “fair use” purpose, nor a not-for-profit purpose (as defined under law), but closely analogous to a commercial purpose. Another factor strongly militating against a “fair use” finding is the fact that the use in question would clearly have hindered the copyright owner’s licensing of the song for other purposes, e.g. for other political campaigns and even product marketing campaigns. The use thus interfered with Jackson’s economic rights attached to his copyrights. (Note: the courts do not require a showing of ACTUAL interference based on lost opportunities, but only a theoretical one, as was recently noted in the injunction against the sequel to J.D. Salinger’s Catcher In The Rye, in Salinger v. Colting.)

Whether or not Browne was motivated politically in filing suit, the legal argument has nothing to do with democrat or republican, liberal or conservative.