(UPDATED 10/15: Added YouTube’s response)
Internet issues have taken a back seat in the presidential campaign. But this week, even as Senator John McCain unveiled his new economic plan, he also introduced a new position on copyright law.
Trevor Potter, the general counsel for the McCain-Palin presidential campaign, sent a letter on Monday to Chad Hurley, the chief executive of YouTube, complaining that the video service, now owned by Google, had inappropriately removed McCain commercials from its site.
The commercials incorporated snippets of television news broadcasts. Using provisions of the Digital Millennium Copyright Act, the news organizations demanded that the commercials be removed from YouTube because they violated the organizations’ copyrights.
Mr. Potter praised YouTube as a “platform for political candidates and the American public to post, view, share, discuss, comment on, mash up, remix and argue over campaign-related videos.” Then he argued that the excerpts of news broadcasts represented a fair use, which exempted them from control by the copyright owner:
The uses at issue have been the inclusion of fewer than 10 seconds of footage from news broadcasts in campaign ads or videos, as a basis for commentary on the issues presented in the news reports.
In one case, a McCain commercial included a clip of the CBS anchor Katie Couric talking about sexism in coverage of Senator Hillary Clinton. CBS argued that the use of the clip implied that it was endorsing the McCain campaign.
The letter from the McCain camp didn’t mention it, but the campaign itself has run into copyright claims from the music industry, as Wired noted today:
One of its highest profile hits on the web, “Obama Love,” for example, faced an embarrassing revamp in July when YouTube received a D.M.C.A. take-down notice from The Warner Music Group. The campaign had used Franki Valli’s hit tune “Can’t Take My Eyes Off Of You” as the video’s sarcastic soundtrack.
Like many others whose work has been removed from Internet sites because of the copyright act, Mr. Potter complained about how the act’s provisions seem to favor copyright owners. If the creator of a video complains that it has been removed inappropriately, the act does not allow it to be put back on the Internet for 10 to 14 days. He wrote:
But 10 days can be a lifetime in a political campaign, and there is no justification for depriving the American people of access to important and timely campaign videos during that period.
Mr. Potter proposed that YouTube itself review all demands asking that videos from politicians be removed, to determine if the copyrighted material was covered by the fair use exemption. Most Internet sites want to avoid becoming judges in such legal disputes.
UPDATED:
I’ve asked YouTube for comment and will post its response if it gets back to me.
Furthermore, YouTube said that while presidential campaign content was important, “there is a lot of other content on our global site that our users around the world find to be equally important.” YouTube continued:
We try to be careful not to favor one category of content on our site over others, and to treat all of our users fairly, regardless of whether they are an individual, a large corporation or a candidate for public office….
On a final note, we hope that as a content uploader, you have gained a sense of some of the challenges we face everyday in operating YouTube. We look forward to working with Senator (or President) McCain on ways to combat abuse of the D.M.C.A. takedown process on YouTube, including, by way of example, strengthening the fair use doctrine….
Until now, Senator McCain has not had much common cause with the Internet free speech movement. He voted for the D.M.C.A., and he opposes legislation to enforce network neutrality. So not surprisingly, the advocacy groups jumped to highlight the irony of the campaign’s letter.
Gigi Sohn, the president of the digital rights group Public Knowledge, used the incident to argue that copyright law gives too much power to the copyright holders:
The Digital Millennium Copyright Act (D.M.C.A.) was originally designed by, and for, the big media companies. The concepts of fair use then, as now, are largely ignored or shuffled off to the side when any Congressional discussion of copyright law takes place. The D.M.C.A. passed in 1998 without a hint of opposition in the House and in the Senate. YouTube was abiding by the rules that Congress set up when it took down the videos about which the McCain/Palin campaign complained.
And Fred von Lohmann, a lawyer for the Electronic Frontier Foundation, challenged the campaign’s proposed solution:
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.
If the polls are to be believed, we may never know what how much a McCain administration would fight for everyone’s right to make mash-ups.
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