• by Wendy Davis  @wendyndavis, October 15, 2008

In this first presidential election since the advent of YouTube, both candidates have uploaded videos to the site. And both have seen their clips removed in response to takedown notices from news organizations and media companies.

Now, the McCain-Palin camp is asking YouTube to reevaluate how it responds to allegations that political campaigns' clips violate copyrights held by media companies.

In a letter dated Oct. 13, the campaign's general counsel Trevor Potter asked YouTube CEO Chad Hurley, general counsel Zahava Levine and Google senior copyright counsel William Patry to review all removal requests for clips posted by candidates before taking the clips down.

"Numerous times during the course of our campaign, our advertisements or Web videos have been the subject of DMCA takedown notices regarding uses that are clearly privileged under the fair use doctrine," Potter wrote. "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."

Recently, YouTube has removed a McCain campaign clip that made use of footage showing CBS anchor Katie Couric and one that showed Fox correspondent Major Garrett.

Digital rights advocates had mixed reactions to the letter. On one hand, many have long said that the Digital Millennium Copyright Act's takedown provisions result in the suppression of legitimate speech, because the law gives sites like YouTube an incentive to remove clips as soon as there's a complaint. The statute generally provides that service providers are immune from copyright liability as long as they take down material when a content owner alleges infringement. Uploaders can object and ask that the clips be restored, but that procedure can take a few weeks.

But advocates and industry watchers also say there's no reason for YouTube to give clips posted by political campaigns preferential treatment.

"Welcome to our world," said Eric Goldman, director of the High Tech Law Institute at Santa Clara University. "It's incredibly ironic that we've been howling for years about takedown abuses, and now that it's hit their campaign, they say, 'Maybe there's a problem here.'"

Goldman adds that YouTube also removes clips about political or social issues, but that aren't connected to candidates' campaigns, in response to bogus takedown notices.

In fact, last month, YouTube took down, then restored, thousands of anti-Scientology clips.

"There is a problem here," Goldman said. "But I wouldn't fix it just for the political campaigns."

Electronic Frontier Foundation attorney Corynne McSherry agreed. She said it was troubling that the McCain campaign proposed that "presidential campaigns and candidates should get special rights and special priority on the fair use hierarchy."

"That's not the right solution," she said. "Everybody's rights should be protected."

Art Brodsky, communications director at Public Knowledge, adds that people could reasonably ask "why political speech should be preferred over non-political speech in getting speedy consideration of take down notices."

Potter argued in the letter that the clips clearly should not have been removed, but legal experts say it's often hard to determine whether a particular use infringes.

"It's disingenuous for anyone to say, 'this is clearly fair use,'" Goldman said.

He adds that the intellectual property issues posed by some of the clips may go beyond just copyright. The Katie Couric clip, for instance, might have violated Couric's right of publicity--that is, her right to control the use of her image--or CBS's trademark, Goldman said.