• by Wendy Davis  @wendyndavis, October 20, 2008

The digital rights group Electronic Frontier Foundation said Monday that it agreed with the McCain-Palin campaign that TV networks have overreached in demanding that YouTube remove political ads.

In a letter to CBS, Fox, NBC and the Christian Broadcasting Network, the advocacy group complained that the networks' approach is "contrary to the law" and also threatens "to silence an exciting new source of political expression."

"It is our sincere hope that in the final days of this election season, you will stop sending DMCA (Digital Millennium Copyright Act) takedown notices that target the use of short clips of news footage in election-related videos, whether posted by the presidential campaigns or by individual citizens expressing their views," states the letter by Electronic Frontier Foundation attorney Fred von Lohmann. The letter was sent on behalf of a coalition of civil rights groups including the ACLU, Citizen Media Law Project at Harvard's Berkman Center and Public Knowledge.

Last week, the McCain-Palin campaign asked YouTube to stop removing campaign videos automatically in response to takedown requests by news organizations. The campaign's general counsel, Trevor Potter, complained that the videos only incorporated a few seconds of footage in its ads, and said that doing so was lawful under the "fair use" doctrine.

The Digital Millennium Copyright Act allows uploaders to challenge takedown requests, but restoring a video can take between 10 and 14 days--"a lifetime in a political campaign," Potter wrote to YouTube.

Potter said the TV networks had overreached on their copyright claims and urged YouTube to revamp its procedures and review videos uploaded by both presidential campaigns before removing them.

CBS and Fox are among the networks that complained about McCain's clips. One ad axed from YouTube briefly showed footage of Katie Couric, while another showed Fox correspondent Major Garrett. NBC also previously complained about an Obama campaign video.

YouTube responded last week that it did not have the resources to assess all clips before taking them down in response to complaints. The company also said that determining whether clips made fair use of copyrighted material was rarely simple.

The Digital Millennium Copyright Act safe harbor provisions generally provide that companies like YouTube will not be liable for copyright infringement for clips uploaded by users, but only if those companies remove the clips upon complaints by copyright owners.

The Electronic Frontier Foundation also asked YouTube to revamp its policies--but for all users, not just the presidential campaign. The group argued that YouTube does not need to worry about qualifying for the copyright law's safe harbors if the videos don't infringe. "We understand that whether a particular video constitutes fair use can be a difficult determination to make," states the letter. "Nevertheless, there are clear cases, particularly where short news clips are used in the course of a political video intended as commentary or criticism."

But some other Internet lawyers say that even the use of short clips can pose thorny legal questions. Eric Goldman, director of the High Tech Law Institute at Santa Clara University, previously told Online Media Daily that clips of news anchors might also implicate their right of publicity, or right to control the use of their image, and TV networks' trademarks.