McCain vs. YouTube: How Copyright Affects Government Online

After McCain presidential campaign videos were removed from YouTube, letters between the two organizations give users insight into the Digital Millennium Copyright Act.

by / October 24, 2008

YouTube removed videos from its site featuring Sen. John McCain's presidential campaign videos. Allegedly some of the videos were copyright infringements because they featured clips from news broadcasts - including CBS and Fox News - without receiving permission. The McCain camp claims the videos fell under fair use, but YouTube claims the problem lies in the takedown process.

Although the Web may seem like a free-for-all of information, many people don't realize the laws and regulations affecting their favorite - or maybe not-so-favorite - Internet videos and information.

The following is a rundown of what took place between Sen. John McCain's lawyers and Google-owned YouTube after videos were removed from the popular site following the takedown notice regulation. This information is relevant to all entities using the Internet to post videos and other information, which may be deemed harmless, but when left in the hands of the Digital Millennium Copyright Act (DMCA), can suddenly disappear.

YouTube removed one of McCain's presidential campaign videos from its site due to a takedown notice. According to CNET, takedown notices were filed against McCain campaign videos that had clips of news broadcasts and other copyrighted material. It had happened before, but the campaign decided it needed to react through a rebuttal letter on Oct. 13 that has since been widely published online.

No. 1: Know the Digital Millennium Copyright Act

The Digital Millennium Copyright Act of 1998 says that if copyright owners see their work being used in violation of fair use, they can file a notice of takedown to the service provider. The law states, "Under the notice and takedown procedure, a copyright owner submits a notification under penalty of perjury, including a list of specified elements, to the service provider's designated agent. Failure to comply substantially with the statutory requirements means that the notification will not be considered in determining the requisite level of knowledge by the service provider."

A letter from the McCain camp to Google-owned YouTube said all aspects of the videos fell under fair use. The letter said, "These are paradigmatic examples of fair use, in which all four of the statutory factors are strongly in our favor: 1) the uses are non-commercial and transformative; 2) they are factual, not fictional; 3) they are extremely brief; and 4) they have no conceivable effect on the market for the allegedly infringed works."

The letter seems to mimic the U.S. Copyright Law, which states, "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
o the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit, educational purposes;
o the nature of the copyrighted work;
o the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
o the effect of the use upon the potential market for or value of the copyrighted work."

No. 2: The Definition of Fair Use

According to the U.S. Copyright Office, "The distinction between 'fair use' and infringement may be unclear and not easily defined. There is no specific number of words, lines or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission."

No. 3: Your Options Following a Takedown

But what does this mean for state and local governments venturing into the world of YouTube and Web 2.0? Every organization and government wants to participate and provide the public with information. But if you're using time and resources to post videos online, how can you ensure they won't be removed?

An e-mail from YouTube said the Web site doesn't have a spokesperson available to discuss this issue, but did attach a copy of the reply letter from YouTube's Chief Counsel Zahavah Levine dated Oct. 14.

Part of the letter said: "The real problem here is individuals and entities that abuse the DMCA takedown process. You and our other content uploaders can play a critical role in helping us to address this difficult problem. ...You can file counter-notifications. You can seek retractions of abusive takedown notices. You can hold abusive claimants publicly accountable for their actions by publicizing their actions. ...

We look forward to working with Senator (or President) McCain on ways to combat abuse of the DMCA takedown process on YouTube, including by way of example, strengthening the fair use doctrine ..."

Until changes are made to the definition of fair use, in the words of the U.S. Copyright Office, "The safest course is always to get permission from the copyright owner before using copyrighted material."


Elaine Rundle Staff Writer