The McCain campaign has asked YouTube to provide a fair use analysis of video clips posted from accounts controlled by political campaigns before deciding whether to take them down, saying it takes too long to get them up in a political season when time is a crucial commodity.
McCain campaign general counsel Trevor Potter, in a letter to YouTube owner Google, said that "overreaching copyright claims [he was not specific] had resulted in the removal of non-infringing videos from YouTube, "thus silencing political speech."
Potter said on several occasions ads or videos from the campaign have been subject to take-down notices per the Digital Millennium Copyright Act. He said those ads had included fewer than ten seconds of footage from news broadcasts as a way to comment on issues or the ads themselves, saying they have "no conceivable effect on the market for the allegedly infringed broadcasts."
Potter said that nothing in the law requires YouTube to take down the videos automatically and regardless of legal merit.
He points out that the current system of taking 10-14 days to repost the videos after they have been taken down and found not to infringe is "inadequate protection for political speech," pointing out that 10 days can be a "lifetime" in terms of political speech.
Potter wants YouTube to vet the political videos after they get a takedown notice, and not take them down if they are satisfied that they qualify as fair use.
"Surely the protection of core political speech, and the protection of the central role YouTube has come to play in the country's political discourse, is worth the small amount of additional legal work our proposal would require," he wrote to CEO Chad Hurley and the company's top lawyers.
Potter sent a copy of the letter to the Obama campaign in case they share his concern.
Commenting on the letter, fair use advocate Public Knowledge, did not back the McCain campaign in its public reaction to the request, instead using the opportunity to criticize Congress and the administration.
“The Digital Millennium Copyright Act (DMCA) was originally designed by, and for, the big media companies," said Public Knowledge President Gigi Sohn. "The concepts of fair use then, as now, are largely ignored or shuffled off to the side when any Congressional discussion of copyright law takes place. The DMCA passed in 1998 without a hint of opposition in the House and in the Senate. YouTube was abiding by the rules that Congress set up when it took down the videos about which the McCain/Palin campaign complained. "