The Digital Millennium Copyright Act is designed to provide copyright holders an easy way to prevent the unauthorized spreading of their content on the web.  The oversimplified explanation is that copyright holders notify the website about the content.  The website then removes the material and allows the person who originally posted the material to contest the takedown.

This does not come up on a day-to-day basis in most businesses–unless you are YouTube.  But, this time, it involved John McCain.  The campaign posted clips from FoxNews on the site.  FoxNews claimed copyright and sent a takedown notice to YouTube.  YouTube forwarded the notice to the McCain campaign.  The McCain campaign argued “fair use” suggesting the videos should stay up until the issue was resolved. 

YouTube kept the videos down.  YouTube did so in accordance with the law John McCain voted for ten years ago.  By doing so, YouTube maintains its immunity from any claims Fox News might have over the posting of the copyrighted material. 

You can read more about the story here, here and here. Here is the letter the McCain campaign sent to YouTube.

Because the videos have been taken down, I cannot valuate the claims in the McCain campaign letter. Taking their claims at face value, they are likely to win a challenge 10-14 days from now, but YouTube has no incentive to allow the videos to stay on the site in case the McCain campaign is wrong. Under the DMCA, as the letter states, the McCain campaign is entitled to send a counternotice arguing there has been no copyright violation. Then, FoxNews has a deadline to file suit. If it FoxNews fails to do so, then YouTube can put the videos back up without liability. Thus, YouTube is just taking the safe route and not making its own judgment on fair use. The courts recently required the original takedown party (in this case FoxNews) to consider fair use, but YouTube is not required to and has no incentive to do so, especially considering the volume of videos downloaded daily on the site.

As the McCain campaign suggests, does there need to be a change to the takedown notice procedure applied to political campaigns? What about public interest groups? Other matters of public policy? Where is that line drawn?  Does the process need to be changed for everyone?  If only there were a DMCA maverick. . . .

The focus of the stories about this issue seem to be on the battles between McCain and YouTube and not FoxNews.  No one seems to care FoxNews was the one who sent the takedown notice in the first place and is required to consider fair use.  Fair and Balanced on fair use?