October 13, 2008  ·  Lessig

YouTube%20copyright%20letter%2010.13.08_300.png

The McCain/Palin campaign has written a fantastic letter to YouTube demanding that they start getting real about the response they’re giving to notice and take-down demands of material that “are clearly privileged under the fair use doctrine.” Here is the letter. Bravo to the campaign.

  • Dan Miller

    They’ve got the right idea about fair use. But doesn’t their solution–to subject takedown notices on videos posted by the campaign to a thorough review–smack of special treatment and, indeed, corruption? Why should videos from the McCain campaign be given a more fair process than my homemade pro-McCain videos?

    I think a better solution would involve review of fair-use compliance by Youtube upon receiving a takedown notice, but it could be based off of the number of hits a video is receiving rather than who posted it. That way, we could ensure that the most widely viewed and effective videos aren’t being stifled by copyright concerns without a fair hearing.

  • http://www.dkranch.net Steve Jones

    It’s not a bad idea, but they can still get overwhelmed. I could see them submitting tons of videos just to prevent takedowns from occurring.

    I don’t know how we solve this. As a content creator, I’d like to be able to serve takedowns, perhaps even with some link back to my site that verifies I own the content. I’m not sure that scales well, especially for content from larger companies that might be protected.

    Copyright law is a mess, and this is a place McCain might be suffering. Complain to Dub-ya who signed another bill this week on copyright law.

    For elections, I’d rather see some central points, perhaps government hosted, where each candidate can post their own views, their own ideas, thoughts, video, etc. and have it fair to all.

  • ms

    Dan Miller: Special treatment? It’s not special treatment when you send a letter hoping it’s acknowledged or promoted. Also, I think given the urgency of a campaign, you’re gonna see more squeaky wheels. And since there is a lot of investment into this campaign from many sources, it’s nearly obligatory that the campaign should act accordingly.

    Plus you also have to understand what currently happens at youtube. If I file a DMCA claim against you, you can bet the videos I’ve listed in my claim will be taken down from your account by youtube with NO review almost immediately. You will be notified with my information and that I’ve filed the claim. Because it’s against the law to file a false DMCA, you don’t want to do it out of spite or censorship. (See the intriguing clash between youtube users VenomFangX and Thunderf00t for an example).

    Quick action is usually appreciated by people, but in this case, there really is a lack of review process so you’re guilty until proven otherwise.

    So NO I don’t think corruption has anything to do with it. People are entitled to fair treatment and it is their right to address grievances. Also I read the McCain letter, it was excellent.

    Do I think it will matter? Not in the sense that suddenly McCain video content is expedited and re-posted. But it’s still good they sent it.

    It’s in everyone’s best interest to understand their own Fair Use rights, and also that filing false DMCA’s are a very bad idea. People don’t take too kindly to censorship.

  • Dan Feldman

    McCain’s points are valid about the chilling effects of the DMCA and lack of adequate protection for fair use. But what happens when YouTube gets sued over their fair use judgement? Fair use is so subjective, how would they be able to avoid allegations of favoring one campaign over another? If people are abusing the DMCA to chill speech, why don’t they fix it for everyone, instead of asking for special treatment?

  • http://zgp.org/~dmarti/ Don Marti

    Sites that host user-generated content could apply a simple test: If a user is making money for the site in ad revenue, don’t follow the same dumb takedown steps as you would for no-traffic riff-raff — spend 15 minutes in lawyer time to weed out the bogus letters.

  • MrPeach

    So now the McCain campaign doesn’t like the direct results of legislation McCain championed?

    Cry me a river.

    Fix the DMCA, don’t be asking for exemptions like a whiny little baby.

  • buster

    it’s amazing they have time for this kind of thing when they are getting killed on all other fronts.

  • http://www.socialsecuritybullshit.com Steve Baba

    “Because it’s against the law to file a false DMCA, you don’t want to do it out of spite or censorship. “

    And because it’s against the law, no kid will hack Gov. Palin’s email.

    For those who don’t know, to “file” you don’t have to show up in person (where they would see you are a high-school student), just send an email or FAX.

  • http://ossguy.com/ Denver Gingerich

    I believe that part of their argument for why YouTube should not fear a short period of inaction on DMCA notices is flawed. In footnote 1, the document states “[copyright holders] do not routinely register their live news broadcasts with the Copyright Office, and cannot obtain registration certificates within 10 days … Without such certificates in hand, they have no ability to file infringement actions”, which is followed by a court case reference and Patry blog reference. Based on what I understand of international copyright treaties, either the document is wrong or the USA has not fully implemented all of the treaties they have signed.

    I am thinking primarily of the Berne Convention for the Protection of Literary and Artistic Works, which was first accepted by some countries in 1886 and came into effect on March 1, 1989, in the United States after the passing of the Berne Convention Implementation Act of 1988. The Berne Convention states in Article 5 Section 2 that “protection must not be conditional upon compliance with any formality” [1]. This is the principle of “automatic” protection [2]. It means that a work is automatically protected upon fixation (putting the work into a fixed form) regardless of whether the author has engaged in any formality, such as applying a copyright notice to the work or registering (or pre-registering) the work with a copyright office. Thus, if the news companies are recording their broadcasts, the broadcasts are automatically protected by copyright, according to the Berne Convention.

    I would appreciate if someone with more background in copyright law could help resolve this issue. It seems to me like there is clearly a disconnect between what the Berne Convention says and what people are interpreting US copyright law to require.

    1. http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P109_16834
    2. http://www.wipo.int/treaties/en/ip/berne/summary_berne.html

  • Dan Miller

    ms: What I meant was that if videos posted by the campaigns automatically got a fairer process than videos posted by others, that would represent special treatment of the campaigns by Youtube. And that would be unfair. Instead, Youtube’s policy should work to minimize the harm done by the DMCA. Although the point about Youtube getting sued is cautionary. In general, there needs to be some sort of legislative solution to this.

  • http://sleepyhead.org Judson

    This is really no solution at all from Google’s perspective. They should give some people preferential treatment, and take a dangerous stand for free speech? They are a public company. I like Google as much as anyone, but that’s a lot to ask. Also, while we might think “political campaigns” are easy to spot, remember youtube is available in many languages, and used in many countries. Are they suggesting Google verify campaigns? What constitutes a campaign?

    It’s a nice idea, that Google could always do the right thing, and hire the hundreds of people that would take, but not very realistic. The problem is the legislation. I’m happy to see it actually impacting politicians though, gives me hope that they will actually understand and change the situation.

  • Rick

    I don’t get this at all.

    I fully agree that YouTube (YT) should work with content owners to develop standards of fair use within the context of “everyday use” They have a vested interest in providing the greatest possible remix flexibility for users since users indirectly pay the bills with their page hits. The key point for me is that YT (or some other competing service) has the motive and the tools to bring some definition to the great remix question: What is the benefit of remix to the rights holders?

    But I don’t see the relevance of this letter to the commons issue,
    > Pardon the cynicism but any notion that the GC’s effort isn’t self-serving is simply naïve. I’d have the same opinion if it was penned by the Obama campaign GC.
    > Even ignoring motivation, I don’t see any binding effect on the campaign or the candidate toward the general remix issue. Indeed, it is their expressed intent to be handled differently.
    > Remix methodology in the hands of political campaigns produces some of the most misleading and disinformatiional uploads out there. Let’s not encourage them.
    > The rules for commercial use are well known and accepted. Despite the lofty contention that national political campaigns are somehow different, reality is that they are not. They want your money and your vote, not just your money. Perhaps I could view this differently if our political process (state and national) was more open, but in fact it’s a two-headed monopoly.
    > The “need for speed” opens the door further for swiftboating. I don’t think we want that.
    > We, the public, have no assurance that YT has no political agenda. It’s just wishful thinking to expect that commercials considerations would keep them fair-minded. Over the long haul, maybe, but in the closing weeks before an election? Risky business.
    > In my view, rights holders should have the choice of absolute refusal for use by political campaigns. The GC’s proposition seeks to circumvent the issue by throwing it into YT’s court. If, for example, a “George Bush” campaign wants to undermine Neil Young they might produce a remix of his work (“legal” under YT’s fair use view) that completely undermines his political position or is a legal hair’s breath away from character assassination, is that “fair use”? True, Young chose to actively voice his views and I suspect he could (and would) defend himself quite well, but for lesser artists we’ve introduced a chilling effect on their active participation or, perhaps worse, on the creative process itself. (Indeed, I would think that this very thought would give pause to creators when considering the wisdom of advocating rights protection beyond their lifetime. Controlled by entities who have no interest in the creator’s ideals, their works become available for use by those (with money) seeking to promote entirely opposite positions. If the work passes to the public domain it becomes much easier for those who understand their ideals to preserve them.)

    I could go on but I’ll sum it up. Political campaigns are financially well-oiled machines that use the best professional legal, marketing and sales techniques that money can buy (often without even having to pay for it). That’s got nothing at all to do with the discussion of remix within society as a whole. If they want to use protected work they should deal directly with the rights holders. Can the rights holders play favorites? Sure; why not? If that provokes a pixxing contest they can fight it out (or not) any way they choose. Better that than yet another charge of media or content-provider favoritism.

  • Dan Rust

    For one person’s perspective on how you can make a decision to support Obama AND vote for John McCain, see the YouTube video below:

    http://www.youtube.com/watch?v=PpsdKUQ1nKA

    Feel free to forward this to any “undecided” voters you know of. This will be a VERY close election and we need every single vote we can get. Demonizing Obama will get us a few votes (and also lose us at least a few votes) but I hope that a rational, positive thought process will persuade a few people who are still on the fence.

    Regards, Dan

  • David

    Larry. I think it would be fantastic if you called up Senator McCain and offered to represent him in court. If a republican senator is on board with fair use all of a sudden, why not make the most of it?

    -David

  • http://databyss.com Andrew

    Bravo to the campaign? I fail to see it.

    McCain (and presumably Obama) to YouTube: “The law we made really sucks, we want special exemptions!”

    They wrote and passed a law almost exactly as they were paid to by the lobbyists, and now that they have to deal with it, they don’t like it.

    Boo.

    Fix the law.

  • Rich B

    The McCain campaign could just host the videos internally. Then when they got a DMCA notice they could say, “It’s fair use! Sit on it!”

  • http://www.socialsecuritybullshit.com Steve Baba

    “The McCain campaign could just host the videos internally. Then when they got a DMCA notice they could say, “It’s fair use! Sit on it!”"

    I the McCain campaign wants the publicty from being on YouTube.

    This is a better argument for that baby dancing video in previous thread – just don’t post it on YouTube.

  • http://www.network54.com/Forum/62534/ Steven Roussey

    I don’t think that using other people’s copyrights without permission rises to the level of “chilling effects,” nor do politicians who pass a law deserve special rights when they could have easily written themselves in as an exemption in the first place. Unlike everyone else.

  • Christian

    While I agree with the statements made by McCain’s legal council about the negative effects of the DMCA on free speech, I also agree with those who say that affording special rules for politicians is wrong. If McCain believes that the DMCA restricts free speech he is in a unique position to do something about it, and get the law changed. But giving McCain special treatment is the wrong solution, as others have mentioned, if you give politicians special treatment they stop caring about the problems of the rest of the population. The lack of universal health care in the US is a good example of that, the Senators and Representatives got a good publicly funded health plan themselves and thus haven’t bothered sorting out health care for the rest of the population for a long time.

  • Neal Leininger

    Welcome to what everyday Americans have to deal with John.

    Why don’t you host your own videos and take on the Studios directly?

    No, you’d rather seek special treatment, and let Google/YouTube do your heavy lifting.

    Or better yet, why don’t you seek meaningful legislature that reverses the ill-concieved DMCA

  • http://www.thoughtcrime.net William Byrd

    McCain is getting exactly what he deserves. The idea we would give a politician, especially one who voted for this egregious amendment to the US copyright code, is laughable.

    Good job John, now you shall reap what you sow.

    If you’d like to see for yourself who voted for it:

    http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=105&session=2&vote=00137

  • Chris

    Seriously? Special treatment? This isn’t a fantastic letter, it’s an abomination. If Congress doesn’t suffer like the masses, why should they fix the problem? The letter recognizes there is a problem, but merely requests a sidestep instead of a real fix. This is ridiculous.

  • http://ossguy.com/ Denver Gingerich

    I believe that part of their argument for why YouTube should not fear a short period of inaction on DMCA notices is flawed. In footnote 1, the document states “[copyright holders] do not routinely register their live news broadcasts with the Copyright Office, and cannot obtain registration certificates within 10 days … Without such certificates in hand, they have no ability to file infringement actions”, which is followed by a court case reference and Patry blog reference. Based on what I understand of international copyright treaties, either the document is wrong or the USA has not fully implemented all of the treaties they have signed.

    I am thinking primarily of the Berne Convention for the Protection of Literary and Artistic Works, which was first accepted by some countries in 1886 and came into effect on March 1, 1989, in the United States after the passing of the Berne Convention Implementation Act of 1988. The Berne Convention states in Article 5 Section 2 that “protection must not be conditional upon compliance with any formality” [1]. This is the principle of “automatic” protection [2]. It means that a work is automatically protected upon fixation (putting the work into a fixed form) regardless of whether the author has engaged in any formality, such as applying a copyright notice to the work or registering (or pre-registering) the work with a copyright office. Thus, if the news companies are recording their broadcasts, the broadcasts are automatically protected by copyright, according to the Berne Convention.

    I would appreciate if someone with more background in copyright law could help resolve this issue. It seems to me like there is clearly a disconnect between what the Berne Convention says and what people are interpreting US copyright law to require.

    1. http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P109_16834
    2. http://www.wipo.int/treaties/en/ip/berne/summary_berne.html

  • Kell

    perhaps, if the Campaign followed the recommendations of the Center for Social Media this would not have come up. But for the campaign to ask for special treatment, is par for the course with those who believe themselves to be above the rest.

  • Webster

    “For one person’s perspective on how you can make a decision to support Obama AND vote for John McCain, see the YouTube video below:”

    The problem with that one person’s perspective is his view about a war that started based on mis-information and lies. That McCain said he would STILL have started after all the facts came out.

  • Legislative Bull

    Wow. If only McCain had some connections with those people who MAKE these stupid laws.

  • Drew E. Fenton, MD

    Saran Palin is a disastrous and irresponsible choice by McCain as a VP candidate. It makes me very concerned about McCain’s judgement.

    I am going with Obama/Biden…the responsibble choice.

    A concerned Arizona Medical Doctor.

  • Burton

    All citizens are equal, but some are more equal than others.

  • http://www.myspace.com/musicgrinder Bill Moore

    So, we should allow a two tiered system? One for politicians and one for ‘the rest of us’? Seems to me we should hold McCain to the same rules you and I live by, then, maybe, he’ll change the law to something more reasonable for all of us.

    Yea.. and pigs will fly. This IS McCain, after all. But I can dream.

  • http://www.loyola.edu Jim O’Hara

    What ever happened to the old adage that you have to lie in the bed you’ve made? McCain supported the DMCA, but now that it affects him adversely, he wants special treatment? That hardly sounds democratic. Maybe this will make him think more about the unintended consequences of the bills he votes for. I hope youtube stands firm on their equal treatment of all DMCA takedown notices.

    Jimbo

  • rob

    I’m calling you out, Lawrence. Why do you think this is so great, specifically? Its admittedly thorough; it makes interesting points as to how limiting the law can be. But the request to make a special case for campaigns is particularly egregious. Surely you can’t support putting politicians above the law, which is clearly what is being requested.

    Quick, reply in this forum before I regret supporting Creative Commons in the past and discontinue doing so in the future.

  • http://morlockhq.blogspot.com Jim

    McCain wants special treatment when the very Act that he voted “Aye” to causes him problems.

    Sure, he has a fair use claim, as have many people that have posted videos on Youtube that have been taken down. The law may not have made requirements of automated processing, but how else is Google to comply without financial hardship on the number one video sharing site on the planet? If special consideration was made for videos of political content alone, the volume must still be staggering, especially during election season?

    He should have to follow the provisions of the law that all those people had to follow and see how the provisions that he helped vote into law have had a chilling effect instead of asking for special favor.

    Maybe, when he becomes President or goes back to the Senate, he can learn something from the experience and affect some change in the area of copyright policy.

    in effect, is McCain not making the argument that he should not penalized by the law because he as a politician using the clips for his political gain is obviously not abusing fair use like others who are caught by these same compliance provisions to the DMCA.

    How is that not a corruption of the law? I would honestly like to know. Isn’t the law supposed to be blindly applied?

  • Reece

    As a lot of others have said before me… I don’t think you should come out as whole-heartedly in favor of the this as you seem to be.

    It is a first step to acknowledging there is a problem but the proposed solution is simply wrong.

    “Google is complying with the DMCA as it is written, it is interfering with us, therefore Google need to make an exception for us”

    What????

    They are so nearly there and yet so very far away. I doubt Google will open themselves up to the innumerable lawsuits this could bring from both campaigns if they throw away their ‘safe harbor’ so I’m looking forward to the response which I hope will be some legalese form of:

    “You enacted the law. If you don’t like it, repeal it”

    Although I think that if anything were to happen it would be to change the law to enact this ridiculous exception rather than fix it for normal folks but we can always hope.

  • http://www.myneuralart.blogspot.com tyler k. rauman

    You are part-joking right?
    Obviously there should not be a two-tiered system for handling copyright claims. That would only make it harder to get rid of these bogus copyright laws in the first place.

  • Dan

    I know you’re used to preaching to the masses who were raised on the Napster “revolution” (aka socially sanctioned theft of other people’s property) who want any excuse to ignore intellectual property in general, but, come on, you need to get real. “Fair use” is not a license to use whatever you want. The DMCA doesn’t go far enough in protection copyrights. If anything YouTube isn’t proactive enough in taking down copyright violations. The idea that someone can just claim some political reason and then get an automatic loophole exception is insane. What YouTube needs to do is take things down on any report and only put them back up after the uploader has proven he has the right to use all the content. John McCain certainly has the resources to get right on that. Demanding that they shouldn’t have to bother to do that work is just idiotic.

  • Will

    The only way this can be fixed is if YouTube is not forced to comply with take-down notices until there is proof of infringement.

    The DMCA is causing a LOT of trouble, and solving very few actual problems. If content owners can’t be satisfied with an “innocent until proven guilty” procedure, even if some real criminals slip through the cracks, then I can’t quite bring myself to have much sympathy for them.

  • http://gamingyoutube.com YouTube Master

    don’t get me wrong, i love the youtube community and everything it has done in recent years, but i really think the bias is getting out of hand. i would hate to see censorship and political agendas ruin such an awesome communication medium.

  • Dan W Rykard

    mcCain needs to take off the gloves and this nice guy act and get tough on Obama’s past and what he wants to do when he is elected President, With Obama as President and Pelosi and Reid and the rest of the Democrat party, this nation as we know it the U.S.A. will become a Sociologist country.
    May God Bless
    Walter Louisiana