YouTube to McCain: Fuck You



Finally getting a long
overdue dose of his own medicine.


By Fred Mills


Apparently what’s good for the goose is not good for the
gander when it comes to the McCain campaign. While McSame and Van Palen apparently
have no problem with appropriating popular songs from the likes of Heart,
Orleans, Jackson Browne, etc. and continuing to use them at rallies and in ads
despite the cease-and-desist pleas and protests of the songwriters who
originally penned the tunes, when someone actually steps in and does something
not to their liking, they start squawking.



YouTube has been removing numerous McCain campaign videos
from its site due to copyright violations – to wit, for using songs and
television footage in their clips without obtaining the necessary clearances
or, in some instances, paying the blanket licensing fees. If a copyright holder
spots unauthorized content on YouTube, under the terms of the Digital
Millennium Copyright Act they can submit a DMCA takedown notice with YouTube,
which will then in most instances remove the offending material.



 As a result, the
campaign has complained about YouTube having too-stringent enforcement policies
and, in effect, stifling free speech.



Wow. Stifling free
Those are some seriously weighty huevos (not to mention hubris) that McCain is swinging between his
saggy thighs. You know, Johnny boy, there’s a name you guys in Washington have for what
you’ve been doing: it’s called piracy,
at least according to the standards you’ve consistently set in legislation and
in speeches.



According to reports filed by Wired News (“Stifled by Copyright, McCain Asks YouTube to Consider
Fair Use”) and PC Magazine (“YouTube
Denies McCain DMCA Request”) YouTube considered McCain’s protestations but
dismissed them.



McCain campaign general council Trevor Potter had written a
letter to YouTube and its owner Google that said, in part, “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. 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



YouTube’s response? According to YouTube chief counsel
Zahavah Levine, “A detailed, substantive review of every DMCA notice is
simply not possible due to the scale of YouTube’s operations… The claimant and
the uploader, not YouTube, hold all the relevant information in this regard.
YouTube is merely an intermediary in this exchange.



“[Political content] is invaluable and worthy of the highest
level of protection, [but] there is a lot of other content on our global site
that our users around the world find to be equally important.”


McCain, of course, like most of his peers in Congress, doesn’t have a
history of defending the concept of “fair use” and has consistently sided with
the major labels and big corporations whenever the matter has come up. As Wired News pointed out, the McCain
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 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.”


According to the McCain campaign, the video and audio clips the campaign
tapped for the ads run only briefly and therefore are allowable according to
the fair use doctrine. “The uses at issue,” wrote Potter, “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. These are paradigmatic examples of fair
use, in which all four of the statutory factors are strongly in our


YouTube was not swayed by Potter’s argument.



McCain isn’t exactly running through an uncharted legal
jungle here, by the way: in July his “Obama Love” video, which used part of
Frankie Valli’s “Can’t Take My Eyes Off Of You,” was taken down after the
Warner Music Group notified YouTube of its copyright claim. And last year Fox
News, of all people, sent the McCain campaign a cease-and-desist letter for its
unauthorized use of Fox TV footage.


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