This week, Trevor Potter, general counsel to the campaign, sent a letter to Google criticizing the company for taking down YouTube clips too quickly in response to media and entertainment companies' complaints. Potter argued that the campaign made fair use of the material and proposed that YouTube staff personally review clips submitted by political parties before taking them down.
"We believe it would consume few resources -- and provide enormous benefit -- for YouTube to commit a full legal review of all takedown notices on videos posted from accounts controlled by (at least) political candidates and campaigns," Potter wrote.
Although the Digital Millennium Copyright Act provides that users can challenge takedown notices and have clips restored, the process for doing so can takes 10 to 14 days -- "a lifetime in a political campaign," Potter said.
In recent months, Warner Music Group, CBS, and Fox News have all sent YouTube takedown notices for clips posted by the McCain campaign, according to news reports. Warner's notice was for the "Obama Love" clip that used Frankie Valli's "Can't Take My Eyes Off of You," Wiredreported; CBS's complaint stemmed from the use of part of Katie Couric's Reporter's Notebook, according to MediaBistro; and Fox's was related to the use of the voice of correspondent Major Garrett, according to Politico. (At least one video posted by Obama's campaign has also been targeted for removal, according to NewTeeVee.)
In the letter, Potter points out what many other critics have complained about -- the DMCA's takedown provisions inevitably result in the removal of videos that don't infringe on copyright because they make fair use of material. Whether it's Stephanie Lenz's video of her toddler dancing to a Prince song or videos criticizing Scientology, the DMCA gives sites like YouTube little choice other than to remove clips immediately and then assess their legality later if those sites want to claim immunity for piracy under the statute's "safe harbor" provisions.