The McCain-Palin campaign has a new battleground. The Republican ticket is taking on big-time content holders—CBS, Fox, NBC and the Christian Broadcasting Network—in the voter-rich territory of YouTube.
In this battle, the American Civil Liberties Union and some intellectual law school types are on the side of John McCain.
The fight began when the broadcasters clamped down on McCain’s use of copyrighted video in clips the campaign posted to YouTube. Using the Digital Millennium Copyright Act, the broadcasters sent takedown notices, informing YouTube that the videos infringed on their copyrights.
Oct. 13, the McCain-Palin campaign fought back, saying their political use of the short clips amounted to fair use of the material under the law.
“Overreaching copyright claims have resulted in the removal of non-infringing campaign videos from YouTube, thus silencing political speech,” the campaign said, according to a letter to the networks from several groups including the ACLU and the Electronic Frontier Foundation.
When video aggregators like YouTube receive takedown notices, they typically remove the content and notify the person who posted the video. That person can file a counter-notice, asserting fair use or some other reason why the video is non-infringing. But the DMCA allows the Web site 10 to 14 days to decide whether to restore the video, and the groups argued to YouTube that with the election just 14 days away, such a delay stomps all over the First Amendment interests of both the politicians and the public.
In a letter Monday, the groups asked YouTube to have humans review counter-notices and immediately restore the videos without a wait if they judge them non-infringing. To relieve individual posters from the burden of responding to a bombardment of unjust takedown notices, the groups suggest that YouTube automatically have humans review any takedown notice filed against a poster who has previously filed a valid counter-notice.
YouTube did not immediately respond to a request for comment, but two recent federal court decisions may help define the rights and obligations of posters and Web sites.
In August, a court in San Jose, Calif., allowed a suit to continue against a copyright owner for a takedown notice against a video (a toddler dancing with a song by Prince in the background) that seemed to qualify as fair use; that decision was a warning that copyright holders could possibly face liabilities if they issue takedown notices willy-nilly. Also in August, another judge in the same court dismissed a suit against the Web site Veoh, noting that it had been diligent enough in its work against infringing material to earn “safe harbor” under the DMCA against the infringement claims.
Other groups signing the letters to the broadcasters and to YouTube were the ACLU of Northern California, Public Knowledge, the Citizen Media Law Project (at Harvard’s BerkmanCenter), the Center for Social Media (at the American University School of Communication), the Stanford Fair Use Project, and the Program for Information Justice and Intellectual Property (at American University School of Law).