Update: McCain protests YouTube's removal of his campaign videos
GOP candidate says YouTube acted too quickly to comply with copyright notices that are 'without merit'
McCain's campaign sent a letter Monday to YouTube parent company Google Inc., protesting YouTube's removal of unnamed videos from the site after receiving take-down notices claiming copyright infringement under the Digital Millennium Copyright Act (DMCA). The McCain camp goes on to suggest that YouTube set up a special process for reviewing the legal merit of take-down requests for YouTube accounts associated with candidates or their campaigns.
The letter asserts that numerous times during the campaign, YouTube removed videos that do not violate the DMCA, but instead are examples of fair use of material because the videos included less than 10 seconds of footage from news broadcasts. The use of material from news broadcasts is protected as fair use under the DMCA, McCain's letter claims, because the videos are noncommercial uses of the material, the material is factual and brief, and the videos don't affect the market for the allegedly infringed material.
"Overreaching copyright claims have resulted in the removal of noninfringing campaign videos from YouTube, thus silencing political speech," according to the letter.
Despite the "complete lack of merit in these copyright claims," YouTube has removed McCain's campaign videos immediately upon receipt of the take-down notices, the letter goes on to note.
"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," according to the letter. "Nothing in the DMCA requires a host like YouTube to comply automatically with the take-down notices, while blinding itself from their legal merit."
The McCain campaign went on to propose that YouTube commit to a full legal review of all take-down notices on videos posted from accounts controlled by political campaigns and candidates.
"Surely, the protection of core political speech and the protection of the central role of YouTube has come to play in the country's political discourse is worth the small amount of additional legal work our proposal would require."
In a letter sent yesterday to the McCain campaign, YouTube said that performing a substantial legal review of every DMCA take-down notice that it receives is not a "viable solution."
It is not possible because of the scale of YouTube's operations, the letter said. "Any such review 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 that requires the subjective balancing of four factors," the letter said. "No number of lawyers could determine with a reasonable level of certainty whether all the videos for which we receive disputed take-down notices qualify as fair use."
In addition, YouTube does not have the required information about the content in user-uploaded videos, such as the source of the content and ownership rights, to make the determination as to whether a take-down notice includes a valid claim of infringement, YouTube said.
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