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Public interest advocates have said, for a long time, that the Digital Millennium Copyright Act’s (DMCA) notice and take down provisions stifle free speech. Now the McCain campaign is chanting the same mantra, albeit in a limited sense. As many have reported, on October 13, the McCain campaign wrote to YouTube complaining that the sites’ take down of some of its campaign videos impinged on free speech. For example CBS sent a DMCA take down notice against a McCain ad that claimed that the “lipstick on a pig” remark was directed at Governor Palin. The ad had used a segment of Katie Couric's interview without permission from CBS.
The notice and take down provisions of the DMCA provide a mechanism for copyright owners to prevent infringement by public dissemination of their content through sites such as YouTube. The copyright owner merely has to send a notice to the host claiming infringement and the host is required to disable access to be free from liability for infringement.
In addition, the law provides ISPs with a safeguard from liability for taking down material that turns out to be non-infringing. ISPs thus have an incentive to take down material without any review. Adding to this, content hosts like YouTube say that the sheer volume of take down notices they receive makes it very difficult for them to review each one. Youtube’s response to the McCain campaign also says that it does not make determinations about fair use because that is a very fact specific determination and even lawyers can disagree about whether a particular use was fair or not.
The law does contain a few safeguards meant to protect the person uploading content. For instance, the host is required to notify the uploader of the take down, after which the uploader can send a "put back" notice to the host, if the take down was sent in error. If the copyright owner does not file a lawsuit against the alleged infringer, the host has to restore the content within 10-14 days. However, these counter-notice provisions are often unhelpful to the user. As the McCain campaign’s letter points out, although disabled content can be restored within 10-14 days, “10 days can be a lifetime in a political campaign.” Scholars have noted that the same is true in many other contexts such as the “call to protest or the newsworthy blog”. To counter this problem, the campaign has proposed that at least videos uploaded from websites controlled by political campaigns and candidates should be reviewed for fair use before being taken down. The idea is that such videos are making political speech and should be afforded the greatest first amendment protection. Leaving the videos up despite the notice would not expose YouTube to any additional liability, since the fair use nature of the clip would render it non-infringing in the first place.
Both the time-sensitivity and political speech arguments are valid. With just 19 days to go before elections, every day counts. And both campaigns have a right to have their views heard. But the same is true of all political speech, not just that made by political candidates. For example, just as people need to know how the candidates propose to deal with the current economic crisis, they also they also need to know what economic experts think of the candidates ideas. If that expert uses excerpts from a news clip to make his point, his video is entitled to the same fair use review the candidates’ video is. The larger point which the McCain campaign’s letter completely ignores is that the notice and takedown provisions of the DMCA have been chilling the public’s free speech rights for a long time and need to be reformed. Mike Masnick’s suggestion that content hosts should have a safe harbor from liability even where they refuse to take down based on reasonable belief of fair use is a good first step.
Other solutions, like the one suggested by the McCain campaign, may simply encourage sites like YouTube to voluntarily review the status of certain clips. Although discriminating according to the identity of the original poster may not be the right solution, there may be less discriminatory ways for YouTube and other hosts to review a smaller set of contested posts.
In the long run a more comprehensive reform of the DMCA is needed. Some scholars have suggested that the DMCA should be amended to require hosts to provide notice to uploaders before content is taken down. In addition, they should be required to restore access to content upon receipt of counter notice without having to wait for 10-14 days. Furthermore, strengthening penalties for frivolous takedown notices would help deter abuses of the takedown system. These proposals are being considered by Public Knowledge as part of its six point program for copyright reform.
In the meantime, let's hope that this experience will enlighten the next administration of the need to restore some balance to copyright law.