Chicago (IL) - YouTube decided not follow the request of John McCain’s presidential campaign to closely examine the fair-use issues in regards to politicians prior to pulling down campaign videos based upon DMCA takedown notices.
In a letter to the McCain/Palin camp Zahavah Levine wrote: "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," Levine stated.
This is in response to a letter written Monday by McCain’s campaign that complained to YouTube regarding their quick action in removing McCain’s videos based upon a copyright infringement notice. Trevor Potter, the general counsel for McCain’s campaign felt that some of the ads that had been removed for their use of television footage actually fell under the four-factor doctrine of fair-use and actually had no reason to be pulled.
The citing of the DMCA by McCain is actually quite ironic, and raises much controversy. Over ten years ago, McCain voted to approve the DMCA copyright law: If YouTube does not correctly respond to the law, then they run the risk of being sued.
"If … service providers do not remove the content to such notice, they do so at their own risk because they lose their safe harbor," Levine wrote.
Levine also went on to mention that the analysis of the fair-use law is quite complicated and the video creators should be responsible for performing it, not the hosting website. The uploader has the right to issue a counter-notice if they feel that they have a legal right to, and YouTube will then, within the timeframe of ten days, restore the video.
"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," wrote Levine. "The claimant and the uploader, not YouTube, hold all of the relevant information in this regard, including the source of any content used, the ownership rights to the content, and any licensing arrangements in place between the parties."
“The real problem here is individuals and entities that abuse the DMCA takedown process,” she added.
Levine closes the letter, stating "We look forward to working with Senator (or President) McCain on ways to combat abuse of the DMCA takedown process on YouTube, including by way of example, strengthening the fair-use doctrine, so that intermediaries like us can rely on this important doctrine with a measure of business certainty."
In a letter to the McCain/Palin camp Zahavah Levine wrote: "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," Levine stated.
This is in response to a letter written Monday by McCain’s campaign that complained to YouTube regarding their quick action in removing McCain’s videos based upon a copyright infringement notice. Trevor Potter, the general counsel for McCain’s campaign felt that some of the ads that had been removed for their use of television footage actually fell under the four-factor doctrine of fair-use and actually had no reason to be pulled.
The citing of the DMCA by McCain is actually quite ironic, and raises much controversy. Over ten years ago, McCain voted to approve the DMCA copyright law: If YouTube does not correctly respond to the law, then they run the risk of being sued.
"If … service providers do not remove the content to such notice, they do so at their own risk because they lose their safe harbor," Levine wrote.
Levine also went on to mention that the analysis of the fair-use law is quite complicated and the video creators should be responsible for performing it, not the hosting website. The uploader has the right to issue a counter-notice if they feel that they have a legal right to, and YouTube will then, within the timeframe of ten days, restore the video.
"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," wrote Levine. "The claimant and the uploader, not YouTube, hold all of the relevant information in this regard, including the source of any content used, the ownership rights to the content, and any licensing arrangements in place between the parties."
“The real problem here is individuals and entities that abuse the DMCA takedown process,” she added.
Levine closes the letter, stating "We look forward to working with Senator (or President) McCain on ways to combat abuse of the DMCA takedown process on YouTube, including by way of example, strengthening the fair-use doctrine, so that intermediaries like us can rely on this important doctrine with a measure of business certainty."