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McCain begs for YouTube DMCA takedown immunity

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After having several campaign videos removed from YouTube for alleged copyright violations, Republican presidential candidate John McCain wants the video-sharing web site to consider special takedown privileges for politicians and their ilk.

McCain '08 general counsel Trevor Potter yesterday sent a letter to YouTube execs claiming the site is too quick to remove their campaign videos based on "overreaching copyright claims." He wrote that on numerous occasions that the material in question was "clearly" privileged under the US fair use doctrine.

The letter (available here as a PDF) comes by way of Larry Lessig.

YouTube routinely removes content based on the US Digital Millennium Copyright Act (DMCA) takedown provisions, which grants safe harbor to web sites that promptly remove content if someone alleges it infringes on their copyrights. McCain was among the Senators that voted in favor of the provision in 1998.

"We fully understand that YouTube may receive too many videos, and too many takedown notices, to be able to conduct full fair-use review of all such notices. But we believe it would consume few resources — and provide enormous benefit — for YouTube to commit to a full legal review of all takedown notices on videos posted from accounts controlled by (at least) political candidates and campaigns," Potter wrote.

The letter was addressed to YouTube founder, Chad Hurley; YouTube General Counsel, Zahavah Levine; and Google Senior Copyright Counsel, William Patry. It also CC'd Barak Obama campaign General Counsel, Rober Bauer.

Potter argues the videos taken down by YouTube are "paradigmatic examples" of fair use, because they are non-commercial, factual, extremely brief, and have no conceivable effect on the market for the allegedly infringed work.

"As you know, the DMCA (and YouTube's policies) do not contemplate re-posting of the video until at least 10 and up to 14 days following the receipt of a counternotice — even where the notice is frivolous and the counternotice entirely sound," Potter 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," he added.

Warner Music Group, CBS, Fox News, and other media conglomerates have all sent YouTube takedown notices for McCain videos.

Warner Music Group demanded YouTube remove a McCain video that uses the 1967 Frankie Vallie song "Can't Take My Eyes Off You." CBS wanted a YouTube video removed that used a clip from Katie Couric. And Fox News had a similar complaint about a McCain video that used a clip about the financial crisis.

Obama has also had YouTube campaign videos removed for mashing-up clips from CBS.

While it's certainly nice to see a politician advocate against abuse of DMCA takedown policies from copyright holders without a valid claim or even as a tool to discourage free speech, perhaps these complications should have been considered before passing the law in the first place. ®

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