YouTube Gives McCain Campaign A Rare Reality Check

11/16/2008 05:12 am ET | Updated May 25, 2011

It's not often that a politician runs smack into a law that he or she voted for. Most of the time, laws simply affect other people, like plumbers named Joe. It's not as if, say, a senator or member of Congress voted for the FISA law and then found out he or she was being wiretapped.

That's why it was so unusual, and so gratifying, to see a letter the McCain/Palin campaign sent to YouTube the other day. No, they didn't ask where the snowmen had gone. Instead, the campaign complained about a law that zipped through the entire Congress without a dissenting vote 10 years ago and goes by the somewhat pretentious title of the Digital Millennium Copyright Act, known in the shorthand as the DMCA.

That bill was the first shot in a decade-long battle by the big media companies to control the then-emerging digital technologies. The law was the descendent of the 1984 U.S. Supreme Court case in which devices that allowed videotaping (the technological predecessor to TiVo) were deemed to be legal. The media companies never got over that one, despite the riches showered on them via a new market for video tapes, and began the never-ending campaign to control technology, Outer Limits-like. They want to be in charge of everything you see and hear through laws prohibiting the circumvention of software designed to control access to their works and banning distribution of the tools that allow circumvention.

There's been a lot of discussion over the years about how this law has chilled innovation, set back research and restricted consumer rights. One good look is from the Electronic Frontier Foundation a couple of years ago.

One key part of the law was written as a result of lobbying from the online industry, led by then-giant AOL. This is the so-called "safe harbor" exemption, which protects Internet Service Providers from liability against copyright infringement. If someone complains (files a take-down notice) alleging copyright infringement, and if the Web site takes that material off the site, then the ISP is protected from liability. There are also provisions for counter-notices as well as time limits for carrying out the take-downs and put-backs.

This is where the McCain/Palin campaign ran smack into the nit-pickyness of the DMCA these days, in which a Federal case is literally being made of a 29-second, barely heard snippet of a Prince song.

It seems that the McCain campaign fell afoul of the DMCA when news organizations, of all things, asked that campaign commercials to YouTube be taken down because of alleged copyright infringement. In one case, CBS complained about the use of a Katie Couric quote. In another, Fox News Channel complained about the voice of one of its reporters being heard. As a preliminary observation, it's a shame that news organizations don't give more deference to the concept of "fair use," which allows for copyright material to be used without permission in some specific instances. But news is part of big media these days, so perhaps it's to be expected.

More substantially, the campaign complained about the time it takes to process a DMCA complaint. In the letter to YouTube, the campaign complained that YouTube had followed the last, ironically echoing the complaints that have been made against the DMCA by all types of people and organizations not as prominent as this. "Despite the complete lack of merit in these copyright claims, YouTube has removed our videos immediately upon receipt of the takedown notices." The campaign called the actions "unfortunate and unnecessary" because, they argue, there was no reason to take down the videos. They were, the campaign said, clearly fair use, and the campaign said it wanted their material put back up more quickly than YouTube was willing to do it. (A more thorough legal analysis of the McCain complaint is here.)

From my day job at Public Knowledge, we welcome the McCain campaign to the world as controlled by big media companies. It's a world in which consumers (and the campaign is considered a consumer) is assumed to be guilty of piracy and/or theft, in which the legitimate concepts of fair use are disregarded when convenient and when the threat of lawsuits hangs over every posting. Even now, YouTube is fighting a $1 billion lawsuit filed by Viacom over postings on the YouTube site. It's easy to see why the company takes a very conservative legal position for anything, and why the company decided not to make a special case for the campaign. All users, not only political campaigns, should be treated fairly, YouTube (which is owned by Google) said.

At the end of their letter to McCain, YouTube put the issue more bluntly: "On a final note, we hope that as a content loader, you have gained a sense of some of the challenges we face every day in operating YouTube." The company said it looks forward to working with McCain, in whatever capacity, in helping to fix the abuse of the DMCA process, including strengthening fair use.

That wasn't what the campaign wanted to hear, no doubt, but it was the right thing for YouTube to say on any number of levels. Legally, the campaign was right in that the videos taken down probably were legitimately fair use. But practically, Congress created a law in which all the advantages, benefits and assumptions lie with the big media companies, fair use and rights of consumers be damned. Viacom alone sent YouTube 100,000 takedown notices, which is a fraction of what YouTube receives. In one day, YouTube got 4,000 complaints last month from the Church of Scientology. It can't afford to play favorites, even for a presidential campaign.

The DMCA cries out for reform. And there's no better way to do it than to have a politician experience the short end of the stick that most people experience when running into a process designed by, and for, those more powerful. It doesn't happen often, but when it does the lesson should be a learned. Someone used to taking on the big special interests should relish a fight like this.