McCain Campaign Wants Special Exception From DMCA Takedowns on YouTube

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.