John McCain was a large proponent of the 2000 Digital Milennium Copyright Act which has unquestionably altered the landscape of copyright and IP in the United States. Chief amongst the radical alterations is tremendous (some would say nonexistent) ambiguity in what constitutes fair use for digital media. Various court cases have come no closer to deciding what fair use actually means in an age where music and video can reach millions with the touch of a button. That is why it’s so amusing to learn that John McCain’s political advertisements on YouTube were recently yanked on the heels of a DMCA takedown notice.
The McCain campaign lobbied YouTube to reinstate the videos, suggesting that the questionable content that got the videos flagged was “clearly” covered under the privileged fair use license. While users affected by removed material can file counter-notices and arguments for reinstatement, YouTube allows 10-14 days to elapse before the claims are addressed. McCain ’08 general counsel Trevor Potter wrote that “10 days can be a lifetime in a political campaign, and there is no justification for depriving the American people of access to important and timely campaign videos during that period.” Potter suggested that the original notices were frivolous and his campaign’s counter-notices were entirely sound.
Unfortunately for the McCain campaign, YouTube disagreed and pointed out that it was responsible to treat all notices fairly and equally. YouTube general counsel Zahavah Levine said that if YouTube were to get into the business of privileged relief of takedowns, it would open YouTube to a whole host of legal activity that could end their right to safe harbor in DMCA cases.
Potter suggested that YouTube should analyze video prior to moving them offline. Levine fired back to say that “a detailed substantive review of every DMCA notice is simply not possible due to the scale of YouTube’s operations.” Citing a lack of resources, Levine also noted that YouTube didn’t have enough information to evaluate the legality of flagged videos. “More importantly, YouTube does not possess the requisite information about the content in user uploaded videos to make a determination as to whether a particular takedown notice includes a valid claim of infringement,” she said.
All in all, the McCain campaign is clearly demonstrating that understanding a law is not vital to supporting it.
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