October 16, 2008

The McCain/Palin ticket recently learned the hard way that bad DMCA takedown requests can inhibit legitimate speech after having numerous YouTube campaign videos flagged by rightsholders for incorporating copyrighted music and video clips. The campaign contends that most of these were obvious fair use, and it wants YouTube to stop processing DMCA takedown requests in cases where YouTube decides that fair use applies. Because doing this requires highly-trained humans, the campaign recognizes that there's a problem of scale. Its answer? YouTube should only do this for US political campaign videos. Not surprisingly, YouTube wants no part of this "solution."

In a letter to the campaign yesterday, YouTube Chief Counsel Zahavah Levine made two key points. The first was that having YouTube determines "fair use" claims is difficult and risky for the site. As Levine notes, "Lawyers and judges constantly disagree about what does and does not constitute fair use. No number of lawyers could possibly determine with a reasonable level of certainty whether all the videos for which we receive disputed takedown notices qualify as fair use."