YouTube Tells McCain He Doesn't Get Special DMCA Treatment

from the change-the-law-and-we'll-talk dept

Wed, Oct 15th 2008 4:26pm — Mike Masnick

Earlier this week, we pointed out the letter the McCain campaign had sent YouTube concerning observing fair use before complying with takedown notices on political videos. As we noted at the time, the problem with the situation wasn't with YouTube, but with the DMCA (which McCain voted for, by the way). Now, YouTube's Zahavah Levine has responded to the letter, and made the same point. YouTube won't change its practices because that would be granting special privileges to the campaign rather than everyone else. Instead, YouTube hopes that McCain will help fix the law so that this isn't a problem going forward:

While we agree with you that the U.S. 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, including, by way of example only, political campaigns from around the globe at all levels of government, human rights movements, and other important voices. We try to be careful not to favor one category of content on our site over others, and to treat all of our users fairly, regardless of whether they are an individual, a large corporation or a candidate for public office.

The real problem here is individuals and entities that abuse the DMCA takedown process....

We look forward to working with Senator (or President) McCain on ways to combat abuse of the DMCA takedown process on YouTube, including by way of example, strengthening the fair use doctrine....

This is the right response. As problematic as the takedown process is, the answer should be to fix the law -- not make special exceptions for politicians.

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

20 Comments

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sehlat, 15 Oct 2008 @ 4:41pm

Irony - the funniest form of humor
I can't say I'm all that impressed with the McCain campaign's attempt to bypass the law Senator McCain voted for AFTER Congress was warned about just the sort of abuses that are short-circuiting him on YouTube.

Like the subject says, irony.
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McDonald's, 15 Oct 2008 @ 5:14pm

I'm lovin' it
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Evil Mike, 15 Oct 2008 @ 5:25pm

Flowers
Hey, somebody send flowers to whomever wrote that brilliant riposte!
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jonnyq, 15 Oct 2008 @ 5:29pm

Didn't we already have an article on here pointing out that YouTube can and should respond to DMCA counter-notices, which is essentially what McCain's letter was?

I'm not saying the YouTube's response is wrong, but I seem to remember precedent for what McCain was asking for.

I don't see why we can't have it both ways: fix/abolish the DMCA (with it's horrible process for takedown notices) and abide by existing fair use law in the meantime. McCain wasn't trying to circumvent the DMCA any more than he was trying to point out existing fair use law.

From wikipedia, the DMCA was "[p]assed on October 12, 1998 by a unanimous vote in the U.S. Senate and signed into law by President Bill Clinton on October 28, 1998." There's no sense in singling out the fact that McCain voted for the DMCA when it passed the House on a voice vote, passes unanimously in the Senate and was signed by Clinton. The problem here is not McCain - it's Congress as a whole.

No beef with your post here, Mike. Just putting things in context.
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Anonymous Coward, 15 Oct 2008 @ 5:33pm

Judging by current action of certain self righteous self appointed it is not supprising that there are vigilantes on both sides actively sending DMCA take down notices on the opposite side partied postings.
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RD, 15 Oct 2008 @ 6:08pm

About time
Thank you! Been waiting for this to show on TechDirt since yesterday. Here is a note to all those in power. YOU REAP WHAT YOU SOW. YOU wanted this crap law, and now you get to live with the consequences when the finger is pointed the other way. YOU are not above the law. YOU dont get special treatment. YOU are correct, it IS fair use, but YOU failed to include any language in this insidious law that allows for circumvention of Fair Use arguments. YOU were so all-fired to give the content industries their golden ticket that YOU left this law wide open for abuse. YOU dont get to cry foul when that abuse is now pointed your way, you get to suffer from the results. YOU dont get to complain about not being treated fairly, and then ignore ALL the others who came before you who were ground under by this law and its poorly thought out, protectionist trappings. Good day to you sir, YOU now get to wallow in the filth of your own making.
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eleete, 15 Oct 2008 @ 6:26pm

Re: About time
I bet the next envelope in the pile was another fat check from an industry agency apologizing for the inconvenience. Polluticians.
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ChurchHatesTucker (profile), 15 Oct 2008 @ 7:00pm

Fuck Yeah!
I've been really harsh on youtube for not having a pair, but this almost makes up for it.

You voted for the law, douche, live with it for a while.
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Phillip Vector, 15 Oct 2008 @ 7:09pm

I believe the correct term with this is..

pwned.
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Anonymous Coward, 15 Oct 2008 @ 8:07pm

Re: About time
YOU dont get to cry foul when that abuse is now pointed your way, you get to suffer from the results. YOU dont get to complain about not being treated fairly...
You DO, however, possess the power to do more than just complain. Suggest wielding that power in a constructive manner. This is the reason who have such power in the first place.
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PaulT (profile), 16 Oct 2008 @ 1:02am

Yeah, but if he tries changing the law he voted for, he wouldn't be able to claim soundbites on his campaign! He has to look like he's doing something positive, not actually do something positive!

YouTube made the right decision, McCain should shut up and concentrate on actually trying to make things better for everyone not just certain protected classes.
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Killer_Tofu (profile), 16 Oct 2008 @ 8:02am

Re:
Re #4
Actually the suggestions here at TechDirt go along the lines of suggesting our system would be better with a Notice & Notice method where the video poster gets to reply to the takedown notice, Before the content is taken down.
Right now thing always go notice & takedown, and then the poster of the content gets to respond.
This is to prevent people from stupidly assigning liability to YouTube. By taking stuff down and asking questions later, they are less likely to get sued by some stupid person.

What the campaign letter was suggesting is that things go more the way of a notice & notice. And that YouTube, who currently has no liability in this matter, start taking on some of that liabilty and for them to arbitrarily decide on a wider fair use argument for the content that they are receiving DMCAs over.

The campaign was good to note it, and a notice and notice is much better than notice and takedown, then counter notice. However, it is the Sender of the DMCA takedown that is supposed to consider the fair use, and Not YouTubes responsibility. There in lays the difference. If YouTube started checking up on fair use questions over their millions of videos, then the senders have no incentive to actually pay attention to what they are sending takedowns over. If they were wrong somebody else would let them know. And as it stands, there do not seem to be any good or large enough repricussions for abusing the takedown. I have heard of takedowns getting shot down, but have not heard of anyone being truly punished for sending false takedowns.
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DS, 16 Oct 2008 @ 8:25am

Humm, I wonder what the response would have been if it was Obama that sent YouTube the letter.
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JustMe, 16 Oct 2008 @ 8:44am

Re: jonnyq
I think the letter from McCain's team was asking for a blanket exemption for the duration of the campaign, instead of a request to re-post a couple of videos.
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nasch, 16 Oct 2008 @ 9:09am

Re:
From wikipedia, the DMCA was "[p]assed on October 12, 1998 by a unanimous vote in the U.S. Senate and signed into law by President Bill Clinton on October 28, 1998." There's no sense in singling out the fact that McCain voted for the DMCA when it passed the House on a voice vote, passes unanimously in the Senate and was signed by Clinton.

McCain singled himself out by publicly complaining about the repercussions of a law he voted for. Techdirt didn't just randomly pick a senator and point and shout "he voted for the DMCA!"

The problem here is not McCain - it's Congress as a whole.

It's both, obviously.
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z, 16 Oct 2008 @ 10:15am

Re: About time
Is there a prize for best comment? I'll donate a buck to get you that beer-of-month club subscription.
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z, 16 Oct 2008 @ 10:19am

Re:
First of all, Obama was not in office at the time the DMCA was passed. DMCA = Digital MILLENNIUM Copyright Act, get it? Obama took office in 2005. Look it up.

So I would think we would take it just a little bit easier on the guy, after all, he is just lying in the grave dug by others.

That said, I've not seen many politicians in the past 8 years clamoring to change the stupid law, and I count Obama in that inactivity, so I would not support an attempt by his side to get special treatment either.

I just wouldn't mock him as hard for asking.
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Anonymous Coward, 16 Oct 2008 @ 12:07pm

That's what I call "try your own medicine, Senator."
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Andrew D. Todd, 17 Oct 2008 @ 7:12am

McCain as Schnorrer
Do you know what a schnorrer is? In Jewish tradition, it's a beggar with chutzpah, a fellow who not only thinks the world owes him a living (or at least, every other Jew owes him a living), but he's willing to put it in writing besides. Somehow, that seems to describe John S. McCain III. He's trying to stick YouTube with his internet hosting bill, and complaining about the terms besides. Apart from the DCMA, it's not as if McCain were sound about Network Neutrality either. Vinton Cerf has just endorsed Obama, precisely for that reason. And McCain wants YouTube to throw away the Safe Harbor and take a chance on covering his legal bills, just as the McCain campaign is starting to go in for real dirty tactics. Chutzpah! Schnorrer!!

The obvious and straightforward way to distribute a campaign video is to host it on the candidate's own website, with a domain name registered to the candidate. You have a separate video server, complete with its own domain name, so that it doesn't bog down the text website. Offer video for download, both by http and by Bittorrent, etc. Send out copies by snailmail. And, here's the biggie, encourage viewers to make their own copies and pass them on. Use a standard file format like MPEG2, with no copy protection, or anything like that. In short, use the whole portmanteau of tricks that Linux distributions and Indie musicians use.
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nosurprise, 17 Oct 2008 @ 8:23pm

man, who cares?
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