EFF steps in on YouTube DMCA takedown controversy

With its strong condemnation of recent YouTube copyright takedowns of campaign videos incorporating news footage, the EFF might be able to accomplish for fair use what the presidential political campaigns have not.

Earlier this week, the Electronic Frontier Foundation stepped into the controversy over the takedowns, which are coming at a crucial time in the political season. (YouTube's DMCA-allowed review process would keep such videos off the service for at least 10-14 days -- in some cases, until after the November 4 election.)

Leading a coalition of public-interest groups including the ACLU and Public Knowledge, the EFF sent two letters, one to broadcasters who have made DMCA claims to YouTube concerning the videos (PDF available here), and one to YouTube itself (PDF available here). The broadcasters' letter criticized the four networks addressed -- CBS, NBC, Fox, and the Christian Broadcasting Network (CBN) -- for complaining about usage of clips from news shows. Use of short clips (under ten seconds) from news shows, even if those clips are from rival networks (e.g., John Stewart airing a few seconds from 60 Minutes), is generally accepted as fair use in the world of television.

The EFF letter made that comparison, adding, "Sending unfounded takedown notices is not only against the law, it also threatens to interfere with the vibrant political debate occurring on community video sites like YouTube. Remixing the news to make your point is what political speech looks like in the 21st century." Both the Obama/Biden and McCain/Palin campaigns have been affected by takedown notices during the campaign season.

As for YouTube, the EFF suggested some near-term efforts to clean up the takedown process, as the McCain/Palin campaign previously requested. But in response to YouTube's response that the American political campaign didn't necessarily deserve special treatment, the EFF suggested that its recommendations apply to all DMCA-related takedown notices received by the service.

The EFF's recommendations to YouTube are twofold. First, YouTube should provide for human review of all counter-notices -- responses from the person or account posting the allegedly copyright-infringing video -- and, if it's quite clear that the use is fair, YouTube should restore the video immediately rather than in 10-14 days. Second, once a particular YouTube user has filed a successful counter-notice, any future takedown notices against that account should be reviewed by trained humans. The second measure would also go some distance to protecting users who find themselves harassed by specious takedown notices -- harassment that can occasionally lead to the termination of one's YouTube account.

At press time, the EFF had not responded to BetaNews' questions as to whether it had received any response from YouTube or the broadcasters.