McCain protests YouTube’s removal of his campaign videos

Republican presidential candidate John McCain is accusing YouTube of acting too quickly to comply with copyright infringement notices by yanking his campaign videos.

McCain’s campaign sent a letter Monday to YouTube parent company Google Inc. protesting YouTube’s removal of unnamed videos from the site after receiving take-down notices claiming copyright infringement under the Digital Millennium Copyright Act (DMCA). The McCain camp goes on to suggest that YouTube set up a special process for reviewing the legal merit of take-down requests for YouTube accounts associated with candidates or their campaigns.

The letter asserts that numerous times during the campaign, YouTube removed videos that do not violate the DMCA, but instead are examples of fair use of material because the videos included less than 10 seconds of footage from news broadcasts. The use of material from news broadcasts is protected as fair use under the DMCA, McCain’s letter claims, because the videos are noncommercial uses of the material, the material is factual and brief and the videos don’t affect the market for the allegedly infringed material.

“Overreaching copyright claims have resulted in the removal of non-infringing campaign videos from YouTube, thus silencing political speech,” according to the letter.

Despite the “complete lack of merit in these copyright claims,” YouTube has removed McCain’s campaign videos immediately upon receipt of the take-down notices, the letter goes on to note.

“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,” according to the letter. “Nothing in the DMCA requires a host like YouTube to comply automatically with the take-down notices, while blinding itself from their legal merit.”

The McCain campaign went on to propose that YouTube commit to a full legal review of all take-down notices on videos posted from accounts controlled by political campaigns and candidates.

“Surely the protection of core political speech and the protection of the central role of YouTube has come to play in the country’s political discourse is worth the small amount of additional legal work our proposal would require.”

Google couldn’t immediately be reached for comment.

Mike Masnick, president and CEO of IT research firm Techdirt, noted that it is rare to see politicians delving into the fair use issue.

“This is impressive and somewhat unexpected,” he noted in a blog post. “It’s certainly not an issue you’d expect to see raised by a presidential candidate (of either party). I’m sure the McCain campaign recognizes that YouTube is completely within its legal rights to automatically pull down the content, but in sending this letter the campaign is suggesting that, specific to videos put up by either political campaign (the letter cc’s the Obama campaign), that YouTube take into account fair use.”

He further noted that the real issue has nothing to do with Google or YouTube, but in the way the DMCA itself is structured.

“Since it provides clear safe harbor for a recipient of a take-down notice if they take down the content, it’s a reasonable business decision to simply take down the content and then follow the proper procedures for letting the uploader file a response notice,” Masnick wrote. “While it certainly would be nice for YouTube to take into account fair use before deciding whether or not to pull down the content, the real problem is with the law itself, and the incentives it puts in place for any recipient of such a letter.”

He suggested that McCain or Democratic candidate Barack Obama push to have the legislation changed so that DMCA explicitly notes that recipients of take-down notices can keep their protection under fair use if they refuse to take down content because they believe the content in question is a fair use of the material.

The DMCA has taken center stage in the US$1 billion copyright infringement lawsuit filed against Google by Viacom last year alleging that YouTube violates Viacom’s copyrights by showing unauthorized video clips.

President Bush signed into law Tuesday a bill aimed at bolstering protection of intellectual property like software, films and music by raising penalties for infringement and creating a national “IP czar.”

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