News: Several people have alerted me to the copyright controversy brewing over at the McCain-Palin camp, and at YouTube. McCain’s attorney sent YouTube a letter–addressed to CEO Chad Hurley, GC Zahavah Levine, and copyright counsel Bill Patry–asking YouTube to make a determination that McCain’s unauthorized uses of copyrighted content are clearly fair uses and therefore should not be removed after a DMCA complaint. Apparently, several McCain videos–McCain’s letter says “numerous“–have been removed by YouTube after YT received DMCA notices from copyright holders alleging that McCain had infringed their copyrights by posting videos with their content, which McCain’s camp says consisted only of clips of 10 seconds or less of copyrighted news broadcasts.
The DMCA does have a “counter-notice” procedure that allows people to seek the re-posting of videos taken down under a DMCA notice, but the process takes between 10 to 14 days for that to happen, which the McCain camp says is not quick enough for the impending election.
Analysis: First things first. Against today’s backdrop of the financial crisis, this controversy over YouTube videos does seem, well, somewhat trivial. Also, there is some irony in complaining now about “overreaching copyright claims” under the DMCA, a law that I believe McCain voted for in 1998. I am generally sympathetic, though, to the McCain camp’s call for liberal fair use in the context of a presidential election. I’ve written an article arguing exactly that (click here).
One of the problems for YouTube, though, is that the fair use doctrine is notoriously vague, to be judged on a case-by-case basis. What is “clearly” fair use may depend on the eye of the beholder. Companies like YouTube follow the DMCA notice-and-takedown procedure in a more cautious manner, in order to avoid being sued. But the DMCA itself is vague in places — that’s why YouTube faces 2 major copyright lawsuits asking YouTube to pay damages of over $1 billion.
It’s just too bad we haven’t had any discussion by either presidential candidate about reforming the DMCA at any point in the campaign season. And with the financial crisis, copyright issues might never get discussed before the election. The frustrations McCain’s lawyers have expressed to YouTube are not new–they are ones with “overreaching copyright claims” that regular people have faced since the DMCA regime was enacted. Don’t get me wrong: I’m all for a DMCA safe harbor for Internet companies, but the one we have may need some tweaking or clarification.
I do wonder a little bit about what McCain videos have been removed, and what news networks have actually sought their removal. The McCain camp says “numerous” McCain videos have been removed from YouTube. How many are we talking about? I follow all the presidential videos pretty regularly, and I know only of 1 such McCain video involving a clip of Katie Couric that had been taken out of context and used in a negative ad against Barack Obama to suggest inaccurately that Couric was commenting about “sexism” in Obama’s use of “lipstick on a pig.” Is that kind of use of Couric’s broadcast, taken out of context and used in a negative attack ad, a fair use? Hard to say–possibly, debatable at least. Without a case or law saying that this kind of use in presidential campaign material is presumptively or per se fair, YouTube is in a difficult spot to do what the McCain camp proposes. It would be helpful if the McCain camp identified which videos have been removed and posted them all on the McCain website, where it has a section for videos. Then we can know what copyright holder or news network sought the takedown (and try to understand its basis for doing so), and see if all of it should be considered fair use or not.
UPDATE: YouTube wrote a letter to McCain denying his request, citing both practicality and the impossibility of determining fair use with reasonable certainty without a court ruling. “Lawyers and judges constantly disagree about what does and does not constitute fair use. No number of lawyers could possibly determine with a reasonable level of certainty whether all the videos for which we receive disputed takedown notices qualify as fair use,” wrote the YouTube general counsel. (More from PC mag and from ars technica.) Lessig Blog has a copy of YouTube’s letter.
Another option for the McCain camp is to send a letter directly to the news networks that have sent DMCA notices to take down McCain videos, and press their fair use claims with the networks.