YouTube today rejected a request by the McCain-Palin campaign to give special consideration to videos posted by political candidates and campaigns on its site.
McCain’s campaign general counsel Trevor Potter, wrote YouTube complaining it removed four of the campaign’s videos after receiving takedown notices from various media organizations alleging the videos violated the Digital Millennium Copyright Act (DMCA).
Potter requested YouTube to “commit to a full legal review of all takedown notices” on such videos, and sent a copy of his letter to the Obama-Biden campaign.
Zahavah Levin, YouTube’s chief counsel, wrote back saying that failing to comply with takedown notices could cause problems for YouTube; Potter’s solution is not viable; there is no consensus on what constitutes fair use and that video posters can take legal steps against the issuers of abusive takedown notices.
The issue has sparked criticism of “big media” by the online rights movement.
The McCain-Palin campaign, and Fox News, one of the media outlets Potter blamed, did not return calls by press time.
Sandra Genelius, spokesperson for CBS, another of the media outlets Potter named, e-mailed InternetNews.com confirming it asked YouTube to pull the ads because “CBS News does not endorse any candidate in the presidential race.”
“Any use of CBS personnel in political advertising that suggests the contrary is misleading,” she added.
Religious television broadcaster Christian Broadcasting Network (CBN), the third media outlet Potter named, requested videos including clips from its broadcasts be pulled because “we don’t want any conflicts with the IRS,” spokesperson Christopher Roslan told InternetNews.com. “CBN is a registered 501(c)(3) non-profit organization and the IRS does not allow us to oppose or endorse any political candidate, the same as churches,” he explained.
The IRS prohibits 501(c)(3) non-profit organizations, whether religious or secular, from involvement in politics, although the socially conservative Alliance Defense Fund is recruiting clergy to do so in a bid to challenge that rule.
Toeing the court line
This is the third time since September that problems with technology have dogged the McCain-Palin campaign. First, Governor Palin’s Yahoo e-mail account was hacked. Then a laptop belonging to Brian Johnson, the regional coordinator of the Missouri Republican Party, which contained a lot of strategic information relating to the elections, was stolen.
The McCain-Palin campaign’s request for YouTube to review takedown requests is in line with a recent ruling by the Northern District Court of California San Jose Division, which heard the case of Stephanie Lenz.
Lenz put a video on YouTube of her baby dancing to Prince’s song Let’s Go Crazy. You can see the video here.
YouTube pulled the video after getting a takedown notice from music copyright owner Universal Music, on grounds of DMCA violations, and after some legal maneuvers by both parties, the judge ruled in Lenz’s favor in August.
That ruling says the copyright owner “needs to check and make sure that there is no fair use violation before sending a takedown notice under the DMCA,” Scott Christie, a partner at law firm McCarter & English, told InternetNews.com.
The decision may not be binding over the news organizations that issued takedown notices to YouTube because it’s a trial court decision, Christie said. However, “they should pay heed to it because the cases are so factually similar that it would seem they are ignoring the only authoritative legal opinion out there addressing this issue.”
Although the ruling does not directly address YouTube’s responsibility, Christie said it “should certainly be aware of this decision” and that “people may think YouTube is turning a blind eye to the issues because it doesn’t want to be bothered.”
Potter of the McCain-Palin campaign contends that the ads pulled contained “fewer than ten seconds of footage from news broadcasts,” and that this is fair use, but Christie said there is no clear definition of fair use, a stance also taken by YouTube’s Levin.
Next Page: YouTube’s argument
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Levin wrote that YouTube cannot review every DMCA notice it receives as suggested by Potter because of the scale of its operations. Also, the reviews “would have to include a determination of whether a particular use is a ‘fair use’ under the law, which is a complex and fact-specific test,” and, Levin wrote, “Lawyers and judges constantly disagree about what does and does not constitute fair use.”
In addition, Levin pointed out that YouTube “does not possess the requisite information about the content in user-uploaded videos” to let it determine whether a particular takedown notice includes a valid claim of infringement. And she listed various legal remedies for anyone who feels they were the victims of an abusive takedown.
“Let’s start by identifying the real villains here: The major news media outlets,” Fred von Lohmann, the EFF’s senior staff attorney, said in a blogpost. “They are the ones censoring these political ads, based on the use of a few seconds of their footage.”
In addition, von Lohmann pointed out that NBC has tried to get the Obama campaign to pull an ad from the Obama-Biden campaign. Titled Bad News, the ad features NBC News anchors Tom Brokaw and Keith Olbermann.
As of today, the video did not appear to be on VoteForChange, the Website where it is said to have been posted. The Obama campaign did not respond to requests for comment by press time.
Public Knowledge co-founder and president Gigi Sohn said in a statement on the organization’s Website that the DMCA “was originally designed by, and for, the big media companies,” and that YouTube “was abiding by the rules that Congress set up” when it took down the McCain-Palin videos in question.
Update clarifies quotes from CBN’s Roslan.