Copyright, Politics, and McCain's Request for Special Treatment

Last week we reported that the McCain campaign had sent a letter to YouTube complaining that its campaign videos were being removed from YouTube as a result of unjustified DMCA takedown requests sent by news organizations whose footage was included in the videos. The campaign's general counsel, Trevor Potter, argued that the videos only incorporated a few seconds of footage, which he said was permitted under the "fair use" doctrine, and asked YouTube to stop automatically removing any campaign videos in response to takedown requests.

While it shouldn't come as a surprise that copyright holders often misuse the Digital Millenium Copyright Act's takedown procedures (see Lessig's excellent op-ed in today's New York Times), McCain's request for special treatment for political campaigns brought a wave of criticism:

With 11 homes and 13 cars, it's not terribly surprising that McCain is calling for special treatment for the YouTube videos of politicians. As for the "fair use" claims of the poor starving masses: Let them eat cake.

As our very own DMCA expert Wendy Seltzer pointed out, "we shouldn't exempt politicians from the effects of their laws, so perhaps their copyright misadventures can give them a bit more sympathy for the rest of us."  Paul Alan Levy from Public Citizen also weighed in on the issue with his own scathing letter noting the need to change the DMCA, which like other intellectual property laws, has "been amended over the past several years in a way that gives too much power to IP owners, and shifts the balance too far away from free speech."

Not surprisingly, YouTube responded by telling McCain that his request for VIP status had been denied, but offering to work with the good senator on ways to combat abuse of the DMCA takedown process.

Of course, the blame doesn't just rest with Congress for expanding intellectual property laws to the point that political speech is held hostage by takedown requests.  Copyright owners who send these specious takedowns also deserve to be pilloried. 

On that front, the Citizen Media Law Project joined EFF, ACLU, and a number of other public interest groups in sending an open letter to CBS, the Christian Broadcasting Network (CBN), Fox, and NBC, calling on the networks to stop stifling political debate on the Internet with overreaching copyright claims.  We also sent a letter to YouTube proposing two measures it should adopt to protect everyone's free speech rights: 

1. Human review for all DMCA "counter-notices" sent by YouTube users. Upon receipt of a DMCA counter-notice from a YouTube user, trained YouTube staff should review the video at issue. If this review reveals that the original takedown notice lacked foundation, YouTube should immediately restore the video, rather than waiting the 10-14 day period set out in the DMCA. While we appreciate that YouTube must take its DMCA safe harbor obligations seriously, the McCain-Palin letter correctly explains that "YouTube has nothing to fear by hosting non-infringing videos, let alone by reposting them much sooner than 10 days." The relatively small number of counter-notices filed by users should make this a manageable task for YouTube personnel.

2. Human review for all subsequent DMCA takedown notices after a counter-notice has been provided. Where a YouTube user has already sent a valid counter-notice, any future DMCA takedown notices targeting any video posted to the same YouTube account should be subject to human review by trained YouTube staff. If those subsequent takedowns prove to be well-founded, then YouTube can respond pursuant to its usual procedures. If, however, those notices prove to be obviously lacking in foundation, then YouTube should refuse to remove the video, secure in the knowledge that it has no need of the DMCA safe harbors.  

We'll see if YouTube adopts these changes.  In the meantime, I'll leave you with Professor Lessig's admonition that

[i]t would be far better if copyright law were narrowed to those contexts in which it serves its essential creative function — encouraging innovation and ensuring that artists get paid for their work — and left alone the battles of what criticisms candidates for office, and their supporters, are allowed to make.

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