Wired: 2008 October 14
After seeings its videos repeatedly removed from YouTube, John McCain's campaign on Monday told the Google-owned video site that its copyright infringement policies are stringent to the point of stifling free speech, and that its lawyers need to revamp the way they evaluate copyright infringement claims.
"We fully understand that YouTube may receive too many videos, and too many take-down notices, to be able to conduct full fair-use review of all such notices," wrote Trevor Potter, the campaign's general counsel, in a letter to YouTube and Google. "But we believe it would consume few resources — and provide enormous benefit — for YouTube to commit a full legal review of all take-down notices on videos posted from accounts controlled by (at least) political candidates and campaigns."
The McCain campaign's web video ads have been repeatedly either knocked off YouTube or have had to be revamped for using excerpts of television debate footage, and pop songs as soundtracks, without negotiating for the rights first.
One of its highest profile hits on the web, "Obama Love," for example, faced an embarrassing revamp in July when YouTube received a DMCA take-down notice from The Warner Music Group. The campaign had used Franki Valli's hit tune "Can't Take My Eyes Off Of You" as the video's sarcastic soundtrack.
The letter is notable both because YouTube and online video generally have become prime platforms for communicating political messages during the 2008 presidential campaign, and because this is one of the rare instances when a member of Congress is speaking out in favor of fair-use rights, after experiencing for themselves the onerous burden put on citizens using media to express ideas.
The concept of fair use has had few defenders in Congress, where it's usually treated by lawmakers as code for piracy.
The letter was addressed to YouTube's CEO Chad Hurley, William Patry, Google's senior copyright counsel, and YouTube's General Counsel Zahavah Levine. Patry, ironically, is known for scholarship on the fair-use doctrine.
The doctrine says that four factors should be used to determine whether the unauthorized use of copyrighted material infringes: Whether the use is non-commercial and transformative; whether it's factual; the extent of the use of the material and the impact of the use on the market for the work.
McCain's campaign on Monday argued that its uses of tiny clips of copyrighted material falls within the scope of the doctrine.
"The uses at issue have been the inclusion of fewer than ten seconds of footage from news broadcasts in campaign ads or videos, as a basis for commentary on the issues presented in news reports, or on the reports themselves," Potter wrote. "These are paradigmatic examples of fair use, in which all four of the statutory factors are strongly in our favor."
Earlier last year, the McCain campaign was the subject of copyright infringement claims from Fox News, which objected to the campaign's use of its debate footage.
A copy of the letter is available here. (Hat tip to Larry Lessig.)