The Alaska Public Offices Commission on Friday unanimously dismissed a complaint that mayoral candidate Ethan Berkowitz had improperly used copyrighted video taken from a KTUU-Channel 2 newscast.
The complaint was filed by David Nees, who has volunteered for the Alaska Policy Forum, a conservative policy group headed by David Boyle. Boyle, who attended the hearing, is the press contact for Amy Demboski, Berkowitz's challenger in the runoff election set for Tuesday.
Nees, a former middle school math teacher, is also a failed candidate for the Anchorage School Board and was unsuccessful getting on the ballot in 2014 for a seat in the Alaska Legislature.
In an ad arguing for a bolstered police force, the Berkowitz campaign used a three-second, publicly available clip it had grabbed from KTUU's website. The clip showed news anchor Mike Ross and scenes of a wild bar break in downtown Anchorage last fall, when police in riot gear dispersed a street party of some 200 people that started after bars began closing doors after 2 a.m.
KTUU was not involved in the complaint. No one from the station attended the hearing.
Three of five commissioners -- chairman Kenneth Kirk and Mark Fish in Anchorage and Irene Catalone of Fairbanks -- attended the meeting. With the election near, the three agreed Thursday to hold an expedited hearing into the complaint. After a short executive session with state attorneys on Friday, they each agreed to dismiss the complaint.
Commissioners did not explain their reasons for denying the complaint. A written decision explaining the reasons is expected in the coming days, possibly after the election.
Susanne Fleek-Green, campaign manager for Berkowitz, said the swift decision was a clear signal the attack was a baseless attempt to score political points in the final days of the race.
"Because it was a 3-0 decision it shows pretty clearly that the complaint had absolutely no foundation and that it was yet another last-minute tactic to try and turn the conversation," she said.
Nees attended the meeting by phone. He argued that Berkowitz is a product sold to the public by his campaign. KTUU is a product that tries to charge people for using their services.
"By using the image, by using KTUU footage with or without permission, you have accepted something of value, and you have failed to disclose that you have accepted something of value," argued Nees.
Nees said he spoke with the KTUU business manager. According to Nees, the manager said the station has never allowed a campaign to use its footage, and if it did, it would charge exorbitantly.
Fleek-Green said the campaign was contacted by KTUU's news department to request that the footage not be used, but the news department also recognized that the campaign was following the law. That was the last she heard from the station, she said.
Tom Amodio, an attorney arguing on behalf of the Berkowitz campaign, told the commission that the complaint had no merit. He noted that the practice of using news clips for campaign ads is common practice.
He cited past APOC decisions to argue that the case should be dismissed. He said the commission may not have jurisdiction over federal copyright laws.
"This is not the Alaska Public Copyright Commission. This is the Alaska Public Offices Commission," said Amodio.
He said an answer to the complaint can be found on the Internet in five minutes under the Fair Use Doctrine, which allows brief portions of copyrighted material to be used without permission or payment for criticism and other purposes.
"It's absolutely legal federal copyright law to use a short clip of anything," he said.
"If KTUU felt we cannot use this lawfully, they would send us a cease-and-desist letter," he said. "They would take us to court ... and file a complaint saying, 'Hey, APOC, they can't legally do that.'
"Where is KTUU? They're not here. It's because there's no way they can enforce it under federal copyright law," he said.