In a move that suggests at least a rudimentary understanding of the Internet, the McCain campaign has sent a letter (here as a PDF) to YouTube and Google about fair use in political YouTube videos.
After watching one too many McCain videos stripped from YouTube due to supposed copyright infringement, Trevor Potter, general counsel for the McCain campaign, wrote a three-page letter to YouTube CEO Chad Hurley, William Patry, Google's senior copyright counsel, and YouTube's General Counsel Zahavah Levine, arguing the campaign has not violated the Digital Millennium Copyright Act (DMCA) and suggests YouTube "commit to a full legal review of all takedown notices on videos posting from accounts controlled by (at least) political candidates and campaigns."
When a video is pulled, the campaign can file a counter notice, but the DMCA does not repost videos until 10 to 14 days later -- far too long for an ongoing political campaign so close to the finish line.
Though the McCain campaign has seen a boost from its YouTube videos, it has also run into trouble showing broadcast television footage and using song snippets without permission. It is on this basis that Potter offers four reasons these do not violate the DMCA but are instead "paradigmatic of fair use": "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." (These are the criteria in the fair use law). Potter then cites a 30-year-old First Amendment case supporting the use of popular songs in political campaigns.
So as to not appear grumpy because of personal slights, the McCain campaign cc'd the Obama campaign on its message.
This move poises McCain to be an important contributor to the ongoing debate regarding the definition of fair use as Internet technology expands. It's interesting to me that even though Obama has used technology to greater extents and acclaim, it's the McCain campaign that steps up for the "little guy." It would be foolish of Obama to not support the proposals outlined in Potter's letter. However, it is well within YouTube's right to banish any videos -- its terms of service explicitly state "YouTube reserves the right to discontinue any aspect of the YouTube Web site at any time."
