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GooTube snubs McCain's call for DMCA favoritism

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YouTube has rejected John McCain's request for special treatment when his campaign videos are hit with DMCA takedown notices.

Earlier this week, the McCain campaign fired a letter at the Google-owned video sharing site, urging it to "commit to a full legal review of all takedown notices on videos posted from accounts controlled by... political candidates and campaigns." But YouTube general counsel Zahavah Levine didn't bite.

Yesterday, Levine replied with a letter of her own, telling the McCain campaign that her site doesn't play favorites. "We try to be careful not to favor one category of content on our site over others, and to treat all our users fairly, regardless of whether they are an individual, a large corporation, or a candidate for public office," she writes.

In an effort to comply with the US Digital Millennium Copyright Act (DMCA), YouTube removes videos when it receives notices from content owners complaining of copyright infringement. YouTube users can file counternotices, arguing for reinstatement of their videos. But in accordance with the DMCA, the site doesn't consider counterclaims for 10 to 14 days after they're received.

John McCain was among those who voted in favor of the DMCA, which provides safe harbor for sites like GooTube. But his campaign's general counsel, Trevor Potter, insists that the video site's DMCA takedown policy is "silencing political speech" by removing non-infringing political videos.

"Numerous times during the course of the campaign, our advertisements or web videos have been the subject of DMCA takedown notices regarding uses that are clearly privileged under the fair use doctrine," Potter writes in his letter to YouTube. "Despite the complete lack of merit in these copyright claims, YouTube has removed our videos immediately upon receipt of takedown notices... It is unfortunate because it deprives the public of the ability to freely and easily view and discuss the most popular political videos of the day."

Potter argues that YouTube should review takedown notices on political vids before they're removed from the site - rather than waiting those 10 to 14 days. "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."

With her response, Levine says that YouTube responds to all takedown notices immediately because reviewing each and every claim isn't feasible. "A detailed substantive review of every DMCA notice is simply not possible due to the scale of YouTube's operations," she says. "More importantly, YouTube does not possess the requisite information about the content in user uploaded videos to make a determination as to whether a particular takedown notice includes a valid claim of infringement."

Without counternotices, she argues, YouTube isn't in a position to judge the notices. Regardless, the site refuses to dole out special treatment. "While we agree... that the US Presidential election-related content is invaluable and worthy of the highest level of protection, there is a lot of other content on our global site that our users around the world find to be equally important."

The real problem, Levine says, is all those people who are abusing the DMCA by bombarding YouTube with invalid takedown notices. Like other video posters, she explains, the McCain campaign can seek retractions of "abusive takedown notices" and even file suit against copyright holders who overstep their bounds.

What's more, YouTube would like Senator McCain to beef up the old fair use doctrine, "so that intermediaries like us can rely on this important doctrine with a measure of business certainty".

In short, YouTube believes that it's the victim here. Not John McCain. ®

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