After a slew of political ads from the McCain-Palin campaign were taken down from YouTube because of copyright holder DMCA complaints, the campaign sent a letter to YouTube (PDF) urging the company to be less immediate with its compliance with the letters and to subject videos to full legal review.
Especially the campaign’s videos. Thomas Potter, general counsel for the McCain campaign, penned the letter and urged YouTube not to comply with notices so quickly, but instead review the videos before taking them down. Potter admonished YouTube to adhere to fair use principles during full reviews of all political campaign videos. He said not doing that was a threat to free speech. Potter also asked YouTube to be swifter about reposting videos after counternotices are issued. Current policy has them waiting 10-14 days before reposting.
“But 10 days can be a lifetime in a political campaign,” writes Potter, “and there is no justification for depriving the American people of access to important and timely campaign videos during that period. Again, YouTube has nothing to fear by hosting non-infringing videos, let alone by re-posting them sooner than 10 days.”
As a footnote, Potter advises YouTube’s legal department that copyright holders often back down after receiving counternotices, presumably because most of the time they’re bluffing. He also takes the opportunity to challenge unnamed broadcast networks’ copyrights to live broadcasts, arguing they’d have to register those routinely.
The most famous instance of a network forcing a McCain ad off the Internet involved CBS News’s Katie Couric. Footage of Couric’s evening news broadcast was used in the highly controversial “lipstick on a pig” fiasco. CBS demanded YouTube take it down with a DMCA notice, and YouTube complied. This seems to be exactly what Potter was talking about.
The letter was copied, via snail mail, to the counsel of the Obama-Biden campaign, with notice in the letter that the Democrat nominees have been invited to join them in their protection of free speech and fair use and they were awaiting response.
Other copyright holders in the music industry have also been on the offensive against the McCain campaign’s use of their songs during campaign rallies.
The Electronic Frontier Foundation says McCain is asking for special treatment. Fred von Lohmann, who specializes in copyright law for the EFF, was quick to point out, “It assumes that YouTube should prioritize the campaigns’ fair use rights, rather than those of the rest of us. That seems precisely backwards, since the most exciting new possibilities on YouTube are for amateur political expression by the voters themselves. After all, the campaigns have no trouble getting the same ads out on television and radio, options not available to most YouTubers.”
Another interesting event is the recent passage and signing of the heavily RIAA-backed and MPAA-backed PRO-IP Act, a bill that would create a copyright czar to police intellectual property, increase penalties on infringers, and grant the government the right to seize computers suspected of infringement. It’s been reported the bill passed the Senate by a 100-0 vote, meaning Sens. McCain, Obama, and Biden voted for in favor.
In case your irony sensors are busted, McCain’s campaign criticized copyright holders and told YouTube they should ignore copyright claims until review if they pertained to political campaign ads, because they’re more important, while McCain backed a bill to make it easier for record companies, movie studios, and TV networks to go after suspected infringers and inflict stricter penalties on violators. That is, one imagines, unless alleged violator is running for President.
The PRO-IP Act also include drugs among more traditional and copyrightable “intellectual property.” Maybe none of the senators wanted to be on record voting against a bill stiffening penalties and government authority regarding counterfeit pharmaceuticals.
