YouTube today rejected a request by the McCain-Palin campaign to give special consideration to videos posted by political candidates and campaigns on its site.
McCain's campaign general counsel Trevor Potter, wrote YouTube complaining it removed four of the campaign's videos after receiving takedown notices from various media organizations alleging the videos violated the Digital Millennium Copyright Act (DMCA).
Potter requested YouTube to "commit to a full legal review of all takedown notices" on such videos, and sent a copy of his letter to the Obama-Biden campaign.
Zahavah Levin, YouTube's chief counsel, wrote back saying that failing to comply with takedown notices could cause problems for YouTube; Potter's solution is not viable; there is no consensus on what constitutes fair use and that video posters can take legal steps against the issuers of abusive takedown notices.
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The issue has sparked criticism of "big media" by the online rights movement.
The McCain-Palin campaign, and Fox News, one of the media outlets Potter blamed, did not return calls by press time.
Sandra Genelius, spokesperson for CBS, another of the media outlets Potter named, e-mailed InternetNews.com confirming it asked YouTube to pull the ads because "CBS News does not endorse any candidate in the presidential race."
"Any use of CBS personnel in political advertising that suggests the contrary is misleading," she added.
The Christian Broadcasting Network (CBN), the third media outlet Potter named, requested videos including clips from its broadcasts be pulled because "we're afraid of the IRS," spokesperson Christopher Roslan told InternetNews.com. "CBN is a registered 501(c)(3) non-profit organization and the IRS does not allow us to oppose or endorse any political candidate, the same as churches," he explained.
The IRS prohibits 501(c)(3) non-profit organizations, whether religious or secular, from involvement in politics, although the socially conservative Alliance Defense Fund is recruiting clergy to do so in a bid to challenge that rule.
Toeing the court line
This is the third time since September that problems with technology have dogged the McCain-Palin campaign. First, Governor Palin's Yahoo e-mail account was hacked. Then a laptop belonging to Brian Johnson, the regional coordinator of the Missouri Republican Party, which contained a lot of strategic information relating to the elections, was stolen.
The McCain-Palin campaign's request for YouTube to review takedown requests is in line with a recent ruling by the Northern District Court of California San Jose Division, which heard the case of Stephanie Lenz.
Lenz put a video on YouTube of her baby dancing to Prince's song Let's Go Crazy. You can see the video here.
YouTube pulled the video after getting a takedown notice from music copyright owner Universal Music, on grounds of DMCA violations, and after some legal maneuvers by both parties, the judge ruled in Lenz's favor in August.
That ruling says the copyright owner "needs to check and make sure that there is no fair use violation before sending a takedown notice under the DMCA," Scott Christie, a partner at law firm McCarter & English, told InternetNews.com.
The decision may not be binding over the news organizations that issued takedown notices to YouTube because it's a trial court decision, Christie said. However, "they should pay heed to it because the cases are so factually similar that it would seem they are ignoring the only authoritative legal opinion out there addressing this issue."
Although the ruling does not directly address YouTube's responsibility, Christie said it "should certainly be aware of this decision" and that "people may think YouTube is turning a blind eye to the issues because it doesn't want to be bothered."
Potter of the McCain-Palin campaign contends that the ads pulled contained "fewer than ten seconds of footage from news broadcasts," and that this is fair use, but Christie said there is no clear definition of fair use, a stance also taken by YouTube's Levin.
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