McCain Campaign Wants Special Exception From DMCA Takedowns on YouTube

11 Comments

The McCain campaign, frustrated that its official videos have repeatedly been taken down by YouTube due to copyright claims by media companies, yesterday asked the site to reconsider its copyright policies. Specifically it asked YouTube to “commit to a full legal review” upon receipt of takedown notices pertaining to videos posted by political candidates and campaigns.

Both the McCain and the Obama campaign have had their videos removed by YouTube after news organizations complained via takedown notice that their broadcasters’ images and words are being used for political purposes. However, the McCain campaign is saying such videos fall under fair use, and contending that YouTube is complying too readily with undeserved takedown notices.

The uses at issue have been the inclusion of fewer than ten seconds of footage from news broadcasts in campaign ads or videos, as a basis for commentary on the issues presented in the news reports, or on the reports themselves. These are paradigmatic examples of fair use, in which all four of the statutory factors are strongly in our favor: 1) the uses are non-commercial and transformative; 2) they are factual, not fictional; 3) they are extremely brief; and 4) they have no conceivable effect on the market for the allegedly infringing works.

YouTube quickly takes videos offline after receiving takedown notices, however, it does allow video uploaders to file counternotices. But the site does not repost a video until 10-14 days after receipt of a counternotice — too late in the land of politics, says the McCain campaign. It also does not allow users to repost an edited version of a video under the same URL on which it was originally hosted.

It has become regular practice for politicians to upload spots on the web, where they generate attention for free, with little or no intent to pay to show them on TV. Both campaigns are pushing the limits with these edgier, off-the-cuff ads. Obama’s campaign recently got NBC upset by mashing up its newscasts to portray a fictional future in which McCain had won the election. McCain’s campaign has previously gotten in trouble with Warner Music Group for unauthorized use of the song Can’t Take My Eyes Off of You in an anti-Obama ad, with CBS for using a snippet of a quote by Katie Couric about sexism, and with Fox News for using one of its correspondent’s voices in a clip about the financial crisis.

While the suggestion that takedown notices should be more carefully reviewed is something many have championed, most prominently the Electronic Frontier Foundation, given his position as a powerful U.S. legislator, McCain’s request for special treatment is somewhat ironic. The takedown notice procedures are defined by the Digital Millennium Copyright Act, which McCain voted for along with the rest of the Senate, which passed the bill by unanimous vote in 1998.

But this particular issue is moving at the speed of campaigns, not legislative bodies. The McCain letter argues, “[N]othing in the DMCA requires a host like YouTube to comply automatically with takedown notices, while blinding itself to their legal merit (or, as here, their lack thereof).” Still, as Mike Masnick suggests at Techdirt, McCain should promise to push for a change to the DMCA that protects sites like YouTube for keeping content up after receiving takedown notices that they’ve determined are not warranted.

The full letter is embedded below:

Update: YouTube denied McCain’s request, explaining that it would not be feasible to fully review all takedowns and it would be unfair to make an exception.

11 Comments

Lauren Glenn

I heard about this on CNet’s podcast with Molly Wood. This is like the times when politicans get stuck in morning traffic due to government construction zones and THEN they realize how their decisions affect the rest of us. If anything, this should’ve happened much sooner. I wonder if this would be illegal if they showed people watching these news segments on a TV in the ad?

Either way, most of the people who voted for the DMCA probably never read the damn thing before signing it otherwise there would’ve been at least 1 dissenter.

David

I’m not terribly surprised, as politicians already manage to get “except for politicians” clauses in telemarketing laws and spam laws. Why wouldn’t they want the same for DMCA enforcement?

Hendrik Rood

I love these complaints. Effectively it puts both candidates campaign with their nose on the far reaching powers that have been given to the DMCA.

One thing I allways point people on, who ask why the European Parliament is so willing to intervene on international mobile roaming rates, is that they themselves are one of the groups that get hit by high roaming rates the most. That is a strong stimulus for political mind share.

So, watch the DMCA being altered in the forthcoming years, now that both parties have been confronted with the result of their legislation.

Tim Street

So are both campaigns doing something that is illegal by posting footage that they don’t have the rights to on YouTube?

Are both campaigns in violation of US LAW?

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