October 14th, 2008
McCain to YouTube: Respect fair use (at least for pols)
YouTube’s speedy response to DMCA take-down notices has been the subject of lawsuits – notably Stephanie Lenz, who with the EFF sued when YouTube deleted her video of her kid rockin’ out to a Prince song.
Now John McCain has a problem with YouTube take-downs. In a letter to CEO Chad Hurley as well as YouTube and Google lawyers (PDF), McCain campaign general counsel Trevor Potter outlines the problem:
Overreaching copyright claims have resulted in the removal of non-infringing campaign videos from YouTube, thus silencing political speech.
Despite the complete lack of merit in these copyright claims, YouTube has removed our videos immediately upon receipt of takedown notices. This is both unfortunate and unnecessary. It is unfortunate because it deprives the public of the ability to freely and easily view and discuss the most popular political videos of the day. … [N]othing in the DMCA requires YouTube to comply automotanically (sic) with takedown notices, while blinding itself to their legal merit (or, as here, their lack thereof).
Is this really McCain’s position? That fair use should be respected and copyright holders shouldn’t be able to criminalize users for innocent uses of copyright material? Really? Well, the campaign understands that might be onerous on YouTube, but how about a special procedure for political advertising?
If YouTube receives a takedown notice for any video posted from (political campaigns), we propose it commit to a careful legal review, including fair use analysis, to determine whether the infringement claim has substantial merit.
What videos is he talking about? CBS (owner of ZDNet) filed a takedown on a McCain video that used a clip of Katie Couric chastising Barack Obama.
Declan points out that YouTube’s terms of service give them the right to delete videos as it pleases.
But if YouTube has effective market dominance on online videos (not clear), then it may have a special duty to make sure political speech is not being abused by copyright holders.
