McCain loses argument with YouTube

This was hardly unexpected, but lawyers for YouTube have told John McCain’s lawyers that, while they respect his position, they cannot justify an exemption from their policy regarding take down notices for copyright violations. In complying with such notices, YouTube follows the Digital Millennium Copyright Act (DMCA) — which McCain voted for — that sets forth guidelines on how companies that host “potential” copyright violations should respond when the owners of those copyrights ask them to remove “potentially” offending clips. McCain’s lawyers had argued that their use of copyrighted materials in campaign ads posted to the site were “fair use” and therefore YouTube shouldn’t automatically remove them.

But YouTube’s lawyers rightly responded that fair use is rarely easy to define. Online Media Daily obtained a copy of the letter YouTube Chief Counsel Zahavah Levine wrote to the McCain camp.

“Lawyers and judges constantly disagree about what does and does not constitute fair use,” Levine wrote. “YouTube does not possess the requisite information about the content in user-uploaded videos to make a determination as to whether a particular takedown notice includes a valid claim of infringement. The claimant and the uploader hold all the information in this regard, including the actual source of any content used.”

So John McCain is screwed by a law he helped pass, and, as I wrote yesterday, I sure hope this becomes a cause for revisiting all of copyright law, for it surely needs rewriting for today’s networked culture.

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