McCain vs. YouTube, episode 2: Fair Use Follies.

The Electronic Frontier Foundation has come out in support of the McCain camp’s attempt to pressure YouTube to exempt campaign ads from takedown notices. The brunt of their complaint is two-fold: first, that they are limiting free speech on the internet, especially given that not all of the clips being taken down are in violation of copyright and may fall under fair use, and second, that even if the clips are restored to the site, it takes too long to do so.

Now, we’re all for free speech. Free speech is a wonderful, wonderful thing. But…

This photo, taken out of context, can be used to describe John McCain as an insane old fool. Fair use?

In some of the cases the McCain camp mentioned, they are not protected by “Fair Use”, and the McCain camp’s general counsel, Trevor Potter, needs to actually read the Fair Use guidelines. In his letter to YouTube (warning: .pdf link), Potter states “The uses at issue are the inclusion of fewer than ten seconds…”

That the amount of material used, in an absolute sense, is a common misconception of Fair Use. In fact, the Copyright Office states on their own website, “There is no specific number of words, lines, or notes that may safely be taken without permission.” The other claim made by the McCain camp, is that the uses are “Non-commercial and transformative,” which would support its argument that the usage of the footage is fair use under the first criteria, which examines “the purpose and character of the use.”

At times, however, the uses have been transformative in a way that makes the usage exactly the opposite of fair use. Beyond the theory that the use is non-commercial, which, given that this is a campaign for the highest office in the land, is thoroughly debatable, the problem is, especially in the Couric example, that what is being transformed is the context and meaning of the clip. If a clip of Katie Couric was used that said, “The Obama campaign is launching sexist attacks against Sarah Palin”, then great, throw it in the ad, call it fair use, and run it. But, when the clip used intentionally misdirects the viewer into thinking that the above is true, even though the original segment does not, then the character of the use is flawed.

Finally, copyright holders need to be able to act first, ask questions later, when they believe their rights are being infringed, regardless of the fact that sometimes they are wrong, and sometimes they act in bad faith. The burden of proof should not be on the copyright holders, especially when there is a perfectly acceptable means of remedy if the claim is unfounded, because those most likely to suffer are the small content producers and artists who don’t have the financial or legal resources to support their rights in a content “democracy”.

McCain wants to infringe copyright… Computer says no.

The McCain campaign has petitioned YouTube for special treatment related to copyright infringement and videos the campaign posts on the web. Both the McCain and Obama camps frequently post copywritten material onto YouTube from other sources, such as newscasts and interviews. Just as frequently, the copyright holders have the material removed. Video sharing sites such as YouTube are obligated to remove content upon notification in order to ensure that they maintain safe harbor under the Digital Millenium Copyright Act.

Two questions arise. First, is the use of the material “fair use”? If it is, the McCain camp can petition to have the clip reinstated, but that can take several weeks. In some cases, the use of the clips could constitute fair use, because it could potentially be argued that they are being used for commentary or discourse, and that they are not damaging the ability of the copyright owner to monetize the work. However, given that the McCain camp previously used a Katie Couric segment from the primary season and made it seem as if it were current, the networks may have good cause to shoot first, ask questions later.

Second, will YouTube (or the actions of its users) unintentionally squash “fair use” in the future? The bottom line is that because YouTube has had, intended or no, so much infringing material on its site, that copyright owners have become very efficient at having potentially infringing content removed. 99% of the time, the takedown is fully warranted. But what about the times when the material posted does qualify as “fair use”? Understandably, neither CBS, nor any other rationally functioning media business, have any interest in allocating legal resources to listen to fair use arguments from YouTube users. Sure, maybe the networks are morally wrong to get in the way of fair use, but it is equally wrong of consumers to have an expectation that they can waste another company’s corporate resources.

Best solution? Networks make key clips available under a short-term public use license (not Creative Commons, for reasons too long to get into here), and pull them after the election.