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Seeing a lawsuit by the Fair Use Project at Stanford Law School over takedown notices sent to YouTube isn’t very surprising. Reading a passionate letter from a top lawyer for the Republican candidate for President that describes YouTube’s takedown procedures as a “problem,” is a whole different story.
In the letter, the campaign’s special counsel, Trevor Potter, describes YouTube’s takedown procedures as “a problem that has already chilled this free and uninhabited discourse.” Potter adds that “overreaching copyright claims have resulted in the removal of non-infringing campaign videos from YouTube, thus silencing political speech.”
From the looks of the letter, it appears that certain media organizations have complained about viral web ads produced by the McCain campaign that use footage from news broadcasts. Here’s one instance of a complaint, as last month, CBS prompted YouTube to remove a video that cast Sarah Palin as the victim of sexism.
Potter says these copyright claims contain a “complete lack of merit” and after acknowledging the takedown procedures established by the Digital Millennium Copyright Act, he adds that “nothing in the DMCA requires a host like YouTube to comply automatically with takedown notices, while blinding itself to their legal merit (or, as here, their lack thereof).”
Potter continues his argument by saying there is no need for a safe harbor from liability when there’s no infringement in the first place.
That might be true. Of course, anybody who has followed these contentious copyright issues knows the problem with Potter’s argument. As YouTube might respond, what falls under “fair use” and is thus non-infringing, is subject to debate. Why risk any liability after being sent a takedown notice from a major corporation? In other words, where’s the incentive to shrug off the warning shot?
Potter wants YouTube to begin committing to a full legal review of all takedown notices, and points them to a an encouraging federal case decided thirty years ago over the use of music in political advertisements. (Interesting, considering the amount of problems the campaign has been having on that front.) Perhaps this episode will spark some legislative change in the future, which may send chills down the spine of some industry lobbyists. Is this the start of a re-examination of the DMCA? Perhaps too soon to tell, but it’s worth noting that the name of Robert Bauer, the a top lawyer for the Obama campaign, is also listed underneath Potter’s signature.
Read the complete letter here.
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