Randy Picker has it exactly right in Politics, Copyright and the First-Amendment Commons.
When I saw NBC’s mendacious moaning about the Romney campaign’s use of archival NBC footage from 1997 of Tom Brokaw reporting on Newt Gingrich’s ethics problems, I immediately thought it to be about as fair use as fair use can be. But Picker also sees a bigger picture:
[T]he trump card that NBC and Brokaw sought to play would seem to mean that professional video representations of historical facts would simply be taken off of the table for political campaigns. It is hard to see how NBC and similar organizations could ever consent to use, given that consent itself would seem to be inconsistent with the neutral role of news organizations. Far better to have the fair use regime, where there is no consent and no sense of endorsement by a news organiation of one campaign over another.
Then we get to the bigger picture on this. I have this sense, with more frequency than I would like, that major media organizations think of the First Amendment as something that runs in their favor but never against them. A First Amendment for me but not for thee. It would have been nice if NBC and Mr. Brokaw had seen this as an opportunity to invest in the First Amendment ecosystem. That would have meant acknowledging the legitimacy of the use of the video clip by the Romney campaign and the need for such use in a vibrant democracy. Instead, NBC saw its interest in the narrowest terms possible and threw away a great opportunity to demonstrate how the First Amendment should work in a robust democracy.
(PS. For those with a poor memory of ancient history as regarding second-rate political figures, Newt Gingrich was briefly considered a serious challenger to Rick Santorum in the 2012 GOP Presidential contest.)