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DMCA Comes Back to Bite McCain

By Jason Z. Cohen
Oct 15, 2008 1:56 PM PT

YouTube has pulled some videos posted by the McCain campaign after receiving complaints from news outlets that they were violating copyright.

DMCA Comes Back to Bite McCain

Here's a case in which YouTube has fallen victim to its own fear -- the fear of being sued by media companies as large as itself -- and the Republican presidential candidate has fallen victim to his own votes.

McCain's campaign has sent a letter to YouTube asking that its campaign videos be restored on the site.

Leaning the Wrong Way

YouTube has begun to demonstrate a bias toward removal, effectively kowtowing to the demands of copyright holders who might not even have a legitimate claim. It's a dangerous, slippery slope.

The bias should be toward non-removal. YouTube was designed to be a community-driven organization. it was built on the idea that the community is wise enough collectively to decide what's valid and what's bunk.

Once the balance starts tipping the other way, the move goes in the direction of having lawyers review every submission before it is posted to make sure it doesn't violate someone's copyright. That's an impossible task, and as the McCain campaign states, it creates a chilling effect.

Twisted Words

The content owners claim their content was used in a misleading way. One of the clips in question has Katie Couric lamenting the role of sexism in American politics. She was talking about Hillary Clinton. However, the clip is featured in the "Lipstick" ad, which seeks to connect McCain rival Barack Obama's "lipstick on a pig" comment to McCain running mate Sarah Palin.

Yes, the ad is misleading -- Obama was talking about McCain's economic policies, not his running mate, but CBS ought to get used to it -- that's politics.

In my years as a newspaper editor and reporter, I've had my stories and headlines misused in the very same way, taken out of context and turned into a quasi-promotion or slam of a candidate. It's one of the oldest tricks in the political playbook, but it's also protected under the fair use provisions of U.S. copyright law.

YouTube offers an answer to this, however.

It provides an outlet for the owner of the content to post a video reply, so Katie Couric could take five minutes out of her busy day to get in front of a camera (that's nothing new to her) and offer her rebuttal. Even Obama could post a video explaining that he thinks McCain's policy is the pig and his running mate is the lipstick.

That's how free speech is supposed to work.

In its defense, YouTube says it is simply an intermediary and can't be called upon to decide whose claims are legitimate. So it defers to the law.

Heart of the Matter

The real problem here is the Digital Millennium Copyright Act, which outlines a means for copyright owners to request that offending content be taken down. The law doesn't spell out just how long the outlet has to take the content down, but it provides a "safe harbor" that releases it from liability if it takes the content down promptly.

The DMCA also spells out a "counternotice" procedure -- basically a way for the person who posted the video to appeal its removal. It gives the outlet 10 days to repost the content.

Yet, for those 10 days, the posting party is considered guilty and denied the ability to be heard.

This looks to me a lot like a backwards reading of several of our Constitutional rights, such as the assumption of innocence and that one part about Congress making no law abridging free speech.

"This procedure, and the way YouTube has implemented it, provides inadequate protection for political speech, particularly in the context of a fast-paced political campaign," writes McCain General Counsel Trevor Potter.

No Leg to Stand on

"In our experience, copyright holders often back down upon receipt of a counternotice, primarily because they never had any intention of following through on their takedown notices by filing lawsuits to protect their asserted copyright interests," Potter writes in his notation at the bottom.

This is a troubling assertion, because it pretty much admits that the DMCA goes too far. It has had the effect of creating a new type of enforcement measure in the takedown notice. The notice itself has achieved a position of so much power, in other words, that no follow-up action is necessary. The effect of the law has been to create an assumption of guilt.

And guess who voted in favor of the Digital Millennium Copyright Act? John McCain. Then again, so did Joe Biden. In fact, the whole Senate -- except Judd Gregg of New Hampshire (a Republican, in case you're counting) -- voted to pass the DMCA.

In the end, the issue boils down to a question of harm. What is the damage to CBS if a clip of the "CBS Evening News" is posted as part of a video someone uploads? A few pennies in lost advertising revenue, perhaps?

Now, what's the harm to the person who posted the video, whether they be a Republican presidential candidate or the mother of a dancing toddler? They are being denied their constitutional right to free speech.

That's a cost we shouldn't be imposing on anyone.


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