Could McCain’s Fury Ignite DMCA Revisions?

Two non-profit advocacy groups are proposing changes to the way Congress and web hosts handle copyright claims. The suggestions come less than a week after the the McCain presidential campaign found itself on the wrong side of a takedown notice.

The Electronic Frontier Foundation today made a reasonable attempt to resolve a conflict between YouTube, political campaigns, television networks, and the law, all of which are at odds over online video spots made by the McCain and Obama campaigns that use snippets of TV news broadcasts.

The EFF sent a letter to YouTube asking that it immediately review users’ protests about unfair copyright claims on their videos and restore videos that are clear cases of fair use, and to review all later takedown notices sent to that same account. The digital rights advocacy group also sent a letter to TV networks asking them to stop sending bogus takedown notices for election-related videos.

And last week Public Citizen wrote to Obama and McCain directly, asking them to reform the Digital Millennium Copyright Law, which governs such issues (and which McCain voted for along with the rest of the Senate, which passed it unanimously in 1998). It asked for the end of immediate takedowns being required after copyright claims are made, immunity for hosts if the uploader sends a counter-notice to the claim, the requirement of notice being sent to an uploader before a takedown occurs, and a public database for takedown notices.

Backstory time. Biiiig backstory time: The McCain campaign asked that YouTube specially review any takedown notices for political YouTube accounts; the video-sharing site declined, saying it isn’t equipped to do so and doesn’t want to make special exceptions for certain groups of users. The McCain letter was in regard to multiple spots that the campaign placed on YouTube that included portions of Fox News and CBS broadcasts (Obama got in trouble for a spot that used NBC footage). The TV networks disliked the spots because they don’t want to be portrayed in a political light. They used copyright as an excuse to demand that YouTube take the clips down. The McCain campaign argued that their use of news broadcasts falls under fair use, however once YouTube suspects that something is pirated content, it follows the letter of the law to make sure that it doesn’t face liability, removing the video in question and waiting for 10-14 days before reinstating it, even if a valid counternotice is filed. That speed is too slow for politics, McCain’s campaign said.

Nice as they both sound, neither Public Citizen’s nor the EFF’s letters are likely to make any difference. Public Citizen wants a legislative proposal that will change few if any voters’ minds, so it’s probably best to think of it as a nice idea for the time being. The EFF’s proposal is a more nuanced and reasonable version of McCain’s, but it seems unlikely YouTube will adopt it. The Google-owned video site had responded to the McCain campaign that it does not have sufficient information about the sources of the pieces of any video on its site to determine whether it is fair use, and furthermore that fair use has not been not well-enough agreed upon to make it feel comfortable making judgment calls. It probably still feels the same way a week later. The next big thing looming on the horizon: the outcome of the YouTube-Viacom lawsuit, which could drastically redefine how the DMCA is followed today.