October 15, 2008  ·  Lessig

Chris Soghoian of Berkman has a nice post about McCain/Palin’s call on YouTube to review takedowns from campaigns before taking them down. He criticizes it as “special rules.”

True enough, it is a special rule. But isn’t it appropriate? For here’s the new game for politics in the YouTube age: complain enough to get an account shut down (according to YouTube testimony, 3 complaints gets an account shut down (pg 17 near the bottom), and ideally, do it at the critical time just before an election.

Of course, no one should be subject to this arbitrary game. But especially a campaign. Let’s start here and begin to build out from a clear example of bad incentives.

  • http://managingmiracles.blogspot.com/ Steve

    No the special treatment is not appropriate. To favor a particular class of users will systematically discriminate against other users. This takedown strategy is not just new game in politics, but also many other domains. For example, many have covered the ongoing YouTube takedown back-and-forth between Scientology and its critics. Do they not deserve the same attention?

    I blogged about this here:

  • http://digitalproductions.co.uk Crosbie Fitch

    Copyright is all about privilege.

    Copyright is all about publishers being superior to the public, being able to suspend the public’s natural right to culturally exchange and build upon human culture.

    McCain may well wish politicians were privileged even above publishers, and perhaps he may get such a law enacted.

    I’d suggest the right thing to do was to recall the self-evident truth that all men are created equal, and that NONE should be privileged above the other.

    Publisher should be EQUAL to public.

    Don’t let politicians feather their own beds, after they’ve feathered those of the publishers who lobbied them.

    Abolish copyright.

  • B.Dewhirst

    No, their request for special treatment is unacceptable.

    This form of special treatment is what has already brought about what Chomsky recently called a de facto one party state.

  • http://www.scienceaddiction.com Devan

    How is a political campaign any different from all the other people who get their messages shut down by overzealous opponents? In fact, this should be used to draw attention to the DMCA as a whole (that McCain voted for).

  • Ben Sutherland

    I am in complete agreement with the other commenters and for once in complete disagreement with LL. I do not see why there should be special favor for political campaigns. If politicians created a flawed system why should they be excused from its repercussions?

    The only reason for an excuse I could think of where an exception should be made would be to help an extremely disadvantaged voice be heard from a source where it can’t be heard otherwise. I don’t think either candidate would count as extremely disadvantaged. In fact, I don’t think it would be possible to fairly determine what is “disadvantaged” so with that in mind, lets fix the problem at the source.

    Politicians are the only ones with the power to change the law, why should we remove it from their radar as a problem?


  • Dan Miller

    I agree with the above commenters, this arbitrary threshold of who gets fair treatment and who does not is unfair and unacceptable. Instead pick views or some similar metric of popularity, regardless of who’s speaking, to minimize the damage done to the fair use rights of all people.

  • http://cabalamat.wordpress.com/ Cabalamat

    Of course, no one should be subject to this arbitrary games.

    I agree.

    But especially a campaign.

    So politicians should be insulated from the negative effects of laws they force on everyone else? I don’t think so. Instead, give them an incentive to fix broken laws.

  • http://xmlhacker.com/ M. David Peterson

    I assume you’ve seen YouTube’s official response, but just in case: http://news.cnet.com/8301-13578_3-10066738-38.html

  • http://philrhodes2008.com Phillip Rhodes

    I don’t believe political candidates should receive any special consideration, personally. And I say this as a current political candidate (Libertarian candidate for Lieutenant Governor of North Carolina). And if we strictly limited government to it’s proper roles (protecting property rights, providing “rule of law” and enforcing contracts) politicians would have a lot less power and influence over our lives, which would make part of this discussion moot.

  • Rasmaestro

    As I understand it (going by the recent Wired article), McCain has a fair counter-DMCA action, that can get his content up again. Of course, processing time makes this problematic when it comes to news and works that are critical-by-the-hour, so to speak (eg. political campaigns).

    But is this not an example of “guilty until proven innocent”? Couldn’t you just have the first 3 DMCA-claims trigger a direct notice to the content uploader, asking whether a counter-claim is desired (and only AFTER a certain deadline take the content down)? That would be more in line with “innocent until proven guilty”, me thinks.

    Of course, I don’t know what a counter-claim requires to be accepted. If it’s 250 pages of legal documentation, short deadlines would be meaningless anyway :)

  • http://www.cse.unsw.edu.au/~willu/ Will

    I can understand a distinction between political speech and non-political speech just before an election (although I’m still doubtful it is the best approach in this case). e.g. Maybe the US should treat a political mashup differently to a dancing baby a week before an election.

    I don’t believe that political speech by a campaign should be treated preferentially over political speech by any other citizen. If anything I can see arguments for the reverse: the campaign already has govt matching funds to pay for their message to get out by other means. Isn’t that enough special assistance?

  • Adrian Lopez

    McCain is a senator. If he doesn’t like what YouTube must do to comply with the DMCA at a reasonable cost, he should work to amend the law such that it doesn’t lend itself to abusive claims.

  • vince

    If youtube were the ONLY hosting service on the planet, asking them to take a longer look at a takedown might be worthy…

    But they aren’t.

    The service is reacting appropriately to a request from the copyright holder.

    Some of the situations cited by the campaign do seem to qualify as fair-use, like using a snippet of an interview and/or reporting focused on the candidate or the candidates opponent. Other are clearly outside the realm of fair-use, like using copyrighted materials as background music to a commercial.

    Some have raised the question of… shouldn’t the Obama campaign be subject to the same rule? The obvious answer is Yes. But, under the system set up by the DCMA, the copyright holder gets to decide which uses are fair and which are foul. If the Obama campaign has friends that make music and publish other content and decide to not use their power to demand a takedown… they are lucky.

    Or… maybe, the Obama campaign is actually obeying the law and doing things like getting a license to use content… before they publish it to youtube?

  • zach

    Regardless on whether you agree or not with the request, I think it is quite instructive to see politics in action. What you see here is another example of “what’s good for the ruled is not good enough for the rulers.” These guys have no problem passing disastrous legislation to satisfy their lobbyists, and no intent of fixing said broken legislation, no, instead what they want is their own personal private loophole so they don’t have to suffer like the rest of us.

    This reminds me of the HOV lane debacle we had in NJ years ago. It was fine and well for the population to suffer. But then one day the governor got stuck in an HOV induced traffic jam. Lo and behold, no more HOV lanes!

    Not that I expect McCain to go back to the senate after losing the election, but if he did, how many of us honestly expect him to introduce or even support legislation to fix the DMCA? Anyone?

  • http://www.ok-iraq.com/ حبيبي يا عراق

    How is a political campaign any different from all the other people who get their messages shut down by overzealous opponents? In fact, this should be used to draw attention to the DMCA as a whole (that McCain voted for).