The McCain campaign has written to YouTube, asking that the site ignore a provision of the Digital Millennium Copyright Act (DMCA) and provide special resources to give expedited consideration to copyright claims against campaign videos.
The legalities leading to the current situation aren’t always clear. Both the McCain and Obama campaigns have been hit with DMCA claims for using songs and video without permission. Some videos included nothing more than a mixture of clips from news services, where as others used extracts only; the latter in particular would constitute fair use, but that would be a matter for the courts on a case by case basis.
The McCain campaign objects to YouTube’s DMCA policies on two fronts: the takedown of McCain campaign videos, and the time the counter-notice procedure takes to be processed by YouTube, around 10-14 days. The processing side is understandable: the campaigns want their videos up on the site, they are embedded on other sites (and they can’t replace the same embeds with alternative video once taken down), and 14 days later isn’t quick enough when the videos are often topical to that day, let alone the week, or the broader campaign. That YouTube should offer expedited processing to political campaigns is a matter of choice for YouTube: they aren’t obliged to do so, even if it might win them a little support from both campaigns. However, it’s also a pandora’s box, because once YouTube starts giving exceptions for some, others will be lining up to demand the same treatment.
The interesting part is the McCain campaign’s request that YouTube ignore the DMCA in terms of take downs, a law that McCain himself voted for in the Senate. The campaign argues in a letter (full copy below) that immediate takedown of material following a DMCA notification is “unnecessary” under the DMCA:
“nothing in the DMCA complies a host like YouTube to comply automatically with takedown notices, while blinding itself to the legal merit (or as here, their lackoff). The DMCA provides hosts with a safe harbor from liability for infringement, but there is no need for a safe harbor where, as here, there is no infringement in the first place”
The problem with that statement is two fold: one, the DMCA calls on content to be taken down first, second, the act doesn’t dictate that hosts should make the call on copyright.
There is some ambiguity on the speed at which the takedown should take place. From § 512. Limitations on liability relating to material online (c)(1)(C)
upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
(c)(1)(A)(iii) also deals with the need to take down material following notification.
upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
The key word here is “expeditiously.” The industry has always taken that to be as soon as possible, with the notice coming afterwards. McCain’s campaign are arguing that this isn’t the case, and that YouTube can consider the validity of each claim prior to takedown. The whole idea of safe harbor is one that excludes the host from the copyright claim altogether. For YouTube to start making the call on the validity or other wise on a DMCA notice deals YouTube into every claim it makes that call on…and that’s an army of lawyers salivating for inclusion. That they would keep content up to consider the validity of each claim, would seemingly go against the need to act expeditiously dictated in the act itself.
If there’s one good thing to come out of this letter, it’s that at least one campaign now understands the problems of the DMCA. Maybe, just maybe after the election, someone might look at reviewing the laws as they stand, and to make them more friendly to fair use, and stronger against those who seek to use the laws unjustly.
(in part via NewTeeVee)