McCain Campaign Sends Letter To YouTube Defending Fair Use

from the what-the...? dept

Tue, Oct 14th 2008 8:49am — Mike Masnick

This is impressive, and somewhat unexpected. It's rather rare to see politicians (other than maginal ones, at least) showing any sort of recognition of fair use. It's certainly not an issue you'd expect to see raised by a presidential candidate (of either party). However, John McCain's campaign has sent a letter to YouTube complaining about the site's unwillingness to consider fair use in videos before taking them down. You can read the whole letter at that link or below (if you're not reading via a feed):

The letter basically notes that YouTube seems a bit too fast on the trigger in pulling down content based on DMCA takedown notices, in part parroting the some of the recent ruling where a judge said that those sending DMCA notices need to at least take fair use into consideration. Of course, that was directed at the sender of the DMCA takedown notice, not the recipient, as in this case. I'm sure the McCain campaign recognizes that YouTube is completely within its legal rights to automatically pull down the content, but in sending this letter the campaign is suggesting that, specific to videos put up by either political campaign (the letter cc's the Obama campaign), that YouTube take into account fair use.

The letter is addressed to YouTube's founder, Chad Hurley, as well as Google's Senior Copyright Counsel, William Patry (who we've talked about and quoted here many times) and Zahavah Levine, who is General Counsel for YouTube, who I've met and spoken with in the past. Both Patry and Levine are well aware of the legal issues here (probably better than just about anyone else), so it will be quite interesting to see how they respond. The real issue here has almost nothing to do with Google/YouTube -- but with the way the DMCA itself is structured. Since it provides clear safe harbor for a recipient of a takedown notice if they take down the content, it's a reasonable business decision to simply take down the content and then follow the proper procedures for letting the uploader file a response notice.

While it certainly would be nice for YouTube to take into account fair use before deciding whether or not to pull down the content, the real problem is with the law itself, and the incentives it puts in place for any recipient of such a letter. If the McCain (or Obama) campaign were really concerned with that, they should not just ask for this special exception to YouTube's official policies, but should promise to push for a change to the DMCA that makes an explicit point that recipients of such takedown notices shall retain their safe harbor protections even if they refuse to take down content, if they have a reasonable belief that the content in question is being used in accordance with fair use rules.

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Filed Under: campaign, copyright, dmca, fair use, john mccain, takedowns, videos, william patry, zahavah levine
Companies: google, youtube

33 Comments

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Lonnie E. Holder, 14 Oct 2008 @ 8:59am

Pendulum Swings
Mike:

You hit the heart of the matter in the last paragraph. Grousing about underapplication of fair use does little. The push needs to be to get laws changed so that a reasonable expectation that something falls under fair use laws permits keeping the item. Or, as a minimum, the complainant needs to be specific with respect to the manner in which a particular item violates copyright law. While I prefer the former, I know evaluating fair use costs money, and the burden should be placed on the complainant to show that a particular usage falls outside fair use.

Unfortunately, the businesses that use copyright as a weapon are far better organized than individual users. Until someone mobilizes the assortment of individualists who believe copyright has been overapplied, the abuses will continue.

Of course, if someone was to serve as the champion for fair use, and there were some attorneys interested in pro bono work, the right case could call all the way to the Supremes.
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Reason, 14 Oct 2008 @ 9:14am

Laws get in the way
Aw, gee, too bad that some politicians are being forced to abide by the crappy laws they have foisted upon the rest of us. YouTube, for its part, is just trying to avoid yet another lawsuit. Right or wrong, lawsuits cost money. Congress, at the behest of their handlers, has created this mess. Now I guess they just have to live with it, just like you and me.

The solution: Write better laws or STFU.
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- Willton, 14 Oct 2008 @ 11:37am
  
  Re: Laws get in the way
  Aw, gee, too bad that some politicians are being forced to abide by the crappy laws they have foisted upon the rest of us. YouTube, for its part, is just trying to avoid yet another lawsuit. Right or wrong, lawsuits cost money. Congress, at the behest of their handlers, has created this mess. Now I guess they just have to live with it, just like you and me.
  
  The solution: Write better laws or STFU.
  
  I prefer to not prescribe to such a hopeless mentality. If the law is messed up, then the law should be changed, and the only thing that should get in the way is policy arguments from the other side, not a dogmatic "life sucks; deal with it" attitude.
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  - Lonnie E. Holder, 14 Oct 2008 @ 11:56am
    
    Re: Re: Laws get in the way
    Willton:
    
    I agree absolutely. I see combinations of apathy and martyrdom, and neither is appropriate. If you are apathetic, why are you here anyway? Rather than be a martyr, why not be a champion and galvanize the masses to revolt?
    
    Incredibly enough, we still live in a democracy, and with enough support laws can be changed. Now, if you can get enough people away from their computers and televisions to sign petitions...
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Dan, 14 Oct 2008 @ 9:19am

My guess is that this will do nada.
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Marc Woebegone, 14 Oct 2008 @ 9:24am

mccain mcfailing
nada is righta ... http://sarahpalin-2008.typepad.com/
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mudlock, 14 Oct 2008 @ 9:25am

Quick Question
What was McCain's vote on the DMCA?
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- Jason Still, 14 Oct 2008 @ 10:17am
  
  Re: Quick Question
  He voted for it. it was 99 for, 0 against, 1 not voting
  
  http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=105& amp;session=2&vote=00137
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Joel Coehoorn, 14 Oct 2008 @ 9:35am

stunt
Definitely a campaign stunt, trying to expose Biden's stance on tech issues (it's not good). They should have been pushing this harder, earlier.
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Peregrine, 14 Oct 2008 @ 9:43am

So basically now that some of HIS videos have been pulled, it's an issue... I hate politics. Oh well at least the issue is getting some much need attention.
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Wyatt Ditzler, 14 Oct 2008 @ 10:15am

Fine and Dandy
Just goes to show that everything is 'fine and dandy' with legislation until a 'big fish' gets caught up in the middle of the issue. So many people have been complaining about the problems associated with the DMCA, but no one ever listened. Time for an old cliche "you reap what you sow".

I very much doubt this, but maybe this will bring some attention to the issues we have with DMCA. However, I suspect this will be attributed to a liberal media squashing political free speech. (Not saying that is the case)
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Anonymous Coward, 14 Oct 2008 @ 10:19am

i think as long as companies such as viacom (or others) are trying to sure youtube in relation to any offending videos that maybe found on its site, youtube has no choice but to take the videos down on the spot and ask questions later.

the DCMA only protects them if they are not taking advantage of said videos.

i think the fair use battle will have to wait.
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Anonymous Coward, 14 Oct 2008 @ 10:31am

Obama is evil.
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NeoConBushSupporter, 14 Oct 2008 @ 10:43am

You can't "break" a Maverick!
One word for ya . . . Maverick!! I know McCain supported the DMCA, but come on, that was just to placate all his lobbyist friends. Who here hasn’t "done a solid" for friend and later regretted it. Anyway, I think it’s great that the pointed headed elitists at Techdirt can admit when their wrong and have now joined the “joe six-packs “ and “hockey moms” out there in endorsing McCain. Remember, “Team Maverick” is gonna FIGHT for you!

VOTE McCain 2008 – NOW OFFICIALLY ENDORSED BY TECHDIRT!
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- Anonymous Coward, 14 Oct 2008 @ 10:51am
  
  Re: You can't "break" a Maverick!
  Why are you always such an ass? Where did Mike say anything about supporting McCain?
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  - ChurchHatesTucker (profile), 14 Oct 2008 @ 11:17am
    
    Re: Re: You can't "break" a Maverick!
    I think that NeoConBushSupporter is being sarcastic.
    
    Regardless, let's hope that J-Mac remembers this when he's back in the Senate.
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Bill M, 14 Oct 2008 @ 10:45am

I really bleeping hate iPaper.

Are PDFs too good for TechDirt? Or is there some reason why you don't want people with non-Flash-enabled browsers (such as smart phones) to read this stuff?

Not only that but this document is embedded in such a way that you can't "fullscreen" ... instead you have to reduce it to an almost unreadable, nastilly pixellated size.

Please don't use this iPaper crap again for your documents. PDF viewers are based on an open standard and available for far more platforms.
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Joe, 14 Oct 2008 @ 10:56am

1 Vote for iPaper
I would like to cancel out Bill's vote against iPaper. Flash is heading to open source land, and Flash player may be the most widely adopted plug-in on the Internet. I believe more than even Acrobat.

Why make the experience better for a small percentage of phone users and hurt the 90+ percent of us "classic" readers.

No offense Bill, just representin'
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- mudlock, 14 Oct 2008 @ 11:10am
  
  Another against
  I will see your "classic" and raise, by a post from elinks with .pdf handling via a call to ps2html.
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Bill M, 14 Oct 2008 @ 11:24am
What is so hurtin' about PDF? I'm complaining about this because the experience SUX even on my 22" monitor and quad-core processor.

I'll go into some more detail about why iPaper sucks:
- It's not just smartphone users who are stiffed. How about all those with disabilities who rely on accessibility software to read or enlarge type?
- What if I want to save an important document like this? Sorry, you've got to go to a web site and register for an account!
- What if the iPaper guys go belly up? What are you going to do with all those iPaper docs? They'll be gone or unusable.
- Like many Flash apps, this one doesn't support near-universal UI concepts like arrow keys or pressing the space bar to scroll.
- If there was a passage I wanted to copy and paste for comment, I can't do it.
- It's buggy as hell. You can easily click around a few times and mess up the UI to the point it doesn't know what page it's on to what it's showing, to the point where the browser itself has to be completely shut down.
- iPaper outstandingly poor at large documents, bogging down and flipping out.
- Flash MAY be approaching open source, the iPaper format is 100% proprietary. PDF *is* open. There are a large variety of viewers on every platform. Don't minimize the benefit of having information in an ubiquitous format. Isn't being able to read this letter on anything from an iPhone to a Palm Treo to a Blackberry desirable, beneficial, and enlightened? Information when you need it?
- Finally, as I said before, it's practically unreadable at the size and resolution presented here.
Every time I see an iPaper used I groan because I know it's going to be a very frustrating experience. Yeah it's neat to see the page inline like a graphic... but in every other aspect it's a usability nightmare.

In fact you could pretty much get the benefit of iPaper by taking a screen shot of the page and linking that to the PDF.

It's not a Flash issue... Flash is great in certain circumstances. Just not not this one.
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hegemon13, 14 Oct 2008 @ 11:52am

Bummer
I was really excited until I got to the proposed solution: go ahead and continue to screw the peasants, but make an exception for us important people. Free speech is for everyone, not just those elite with "urgent" political campaigns.

Not only that, but why is this YouTube's job? If the McCain campaign doesn't like it, why aren't they going after the companies who filed the invalid takedown notices? Making YouTube liable for screening DMCA notices is just as bad as making them liable for screening for copyright infringement.
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- Valkor, 14 Oct 2008 @ 2:48pm
  
  Re: Bummer
  Hadn't you heard? Politicians are *special*. They're above the law. Politicians of both parties seem to think that they shouldn't be affected by the laws they pass.
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nipseyrussell, 14 Oct 2008 @ 12:53pm

wilton, i think he was making the point that if legislators are forced to abide by their own laws, maybe, just maybe, they will think about the consequences of their laws more in the future BEFORE passing them.
Also, i think you meant "subscribe" not presecribe???
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Anonymous Coward, 14 Oct 2008 @ 12:57pm

Why would youtube open itself up to the liability of making judgement calls on fair use?
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cantalwayswin, 14 Oct 2008 @ 12:59pm

ipaper
yah. i agree. this ipaper thing blows. PDF works just fine. if it's not broke, dont fix it.
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- Ramblin' Wreck, 14 Oct 2008 @ 11:44pm
  
  Re: ipaper
  If it ain't broke, it doesn't have enough bells and whistles yet.
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Craig, 14 Oct 2008 @ 1:25pm

If only Alanis Morrisette were here to ask "Isn't it ironic? Don't you think? A little too ironic...yeah, I really do think!"
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Anonymous Coward, 14 Oct 2008 @ 1:43pm

confused
This is the same political campaign that didn't have any issues with videos they didn't like being taken off... Hmmm.
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Dan, 14 Oct 2008 @ 2:16pm

Foisted on his own petard. No good deed goes unpunished, if you can call DCMA a good deed. It certainly was to big media.
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- Anonymous Coward, 14 Oct 2008 @ 6:08pm
  
  Re:
  It's "hoisted on his own petard," not "foisted on his own petard."
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Kevin, 15 Oct 2008 @ 10:09am

Not a defense of fair use
This isn't really a case of the McCain campaign endorsing the notion of fair use as it is a case of the McCain campaign trying to get more publicity. At the heart of the issue are clips that the McCain campaign wanted to be available to viewers on YouTube. Unfortunately the clips happened to have be taken from various media companies (Fox, CBS, etc). Those media companies didn't want their clips to be on YouTube, so they sent takedown notices. McCain isn't concerned about the abuse of takedown notices in general, he is only concerned about when they limit his campaign's ability to reach out to their constituents.
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- Curious, 15 Oct 2008 @ 11:43pm
  
  Re: Not a defense of fair use
  Couldnt a solution be for the campaign to have their own copies of the videos - that do not have any media company stamp on them - Shouldnt a campaign then be able to post their video?
  That might be walking a fine line to get around things, but I dont see why that couldnt work.
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nOT a mOOSE, 22 Oct 2008 @ 11:46am

I wish that this article said specifically what clips were in question. It's really hard for me to make an informed opinion without that information.

Generally, I would side wit YouTube. Why should they open themselves up to a lawsuit in order to placate McCain? Is McCain going to pay their expenses in a suit? I bet not.
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