YouTube and the DMCA: Ten years of takedowns

The irony of John McCain's tussles with YouTube over his campaign's video clips is rich stuff for techies who have been observing the mayhem the Digital Millennium Copyright Act has engendered over the years.

Recapping the uproar, the McCain-Palin campaign on Monday asked YouTube, a Google subsidiary, to stop taking down campaign videos that incorporated clips of news broadcasts. YouTube replied that it was doing so at the request of the broadcasters, who were objecting to use of their copyrighted footage. As per the DMCA, YouTube pulled down the videos and will not allow them to be reposted for at least 10-14 days.

McCain's people claim fair use of news footage and argue that under the election-season circumstances, it should be a priority for the service to return the videos. YouTube counters that not only was the "priority" of material a matter of perspective, but that perhaps the entire experience might advance Senator McCain's thinking on the DMCA legislation he voted for ten years ago.

The issue here is OCILLA, the Online Copyright Infringement Liability Limitation Act (aka DMCA Title II). That section protects YouTube (or any other online service provider) from the wrath of the courts in copyright-infringement cases, as long as the service takes access to promptly block access to material of questionable provenance. In the hands of some media and entertainment concerns, the rule has become a tool for removing content that copyright holders would rather not have "out there."

Organizations such as the Electronic Frontier Foundation and Public Citizen (download PDF here) have jumped on the issue, saying that instead of the McCain-Palin campaign requesting that YouTube "commit to a full [fair-use] legal review of all takedown notices on videos posted from accounts controlled by (at least) political candidates and campaigns," legislators need to re-think the DMCA takedown process so fair use is better protected and abuses more easily spotted.

A few choice takedown brawls from the past ten years:

- The NFL. Entertainment not so much for football fans as fans of MC Escher: In 2007, law professor and EFF stalwart Wendy Selzter posted a brief clip of the NFL's on-air Super Bowl copyright message; she did so to point out that the notice, which excludes fair-use exemptions, was overly broad. The NFL sent YouTube a takedown notice five days later, and down the clip went. Seltzer sent a counter-notice to YouTube, and the clip went back up. The NFL sent a second takedown request -- in violation of the DMCA's rules about misrepresenting an infringement claim. Confused? Ars Technica summed the saga up nicely -- and if you'd like to see the video itself, well, Seltzer won her scuffle.

- Prince. Ironically, the best thing about the 2007 Super Bowl played a role in a notorious YouTube fuss of his own. Universal Music Group, which represents the tiny purple entertainer, demanded that a Pennsylvania mother's 30-second video of her infant dancing to a faint background recording of "Let's Go Crazy" be removed. Stephanie Lenz didn't take that lying down -- contacting the EFF and speaking out against "willy-nilly" takedown policies -- and the case is still under litigation. The video remains available for now.

- Viacom. Overkill alert: The media conglomerate sent a stunning 100,000-plus takedown requests to YouTube in February 2007, basing them apparently on broad searches for terms that might refer to their content. About 70 of those were eventually found to be genuinely infringing. (The amount of resources required to sift the wheat from the chaff in that situation is left as an exercise for the reader.) The glut is mainly relevant as a shot across the bow in the $1 billion lawsuit Viacom filed after YouTube and Google the following month.

- Scientology. The religious practice that gave the Internet the Cancelpoodle has been vociferous about using the DMCA to remove videos and other material criticizing the program. Some YouTube users who have repeatedly been the subject of takedown attempts have found their accounts canceled by YouTube for "repeat infringement."

- The International Olympic Committee. In August, the IOC attempted to demand the removal of footage of a Tibetan protest at the Chinese embassy in New York. It's possible that the title of the video -- "Beijing Olympics Opening Ceremony" -- was the cause of the fuss, but it still required time and effort from YouTube and the EFF before the IOC simmered down. And here's the video.

Both presidential candidates have managed to put their foot into offline fair-use discussions concerning music this year, though the McCain-Palin campaign seems to provide more examples. In February, the Obama campaign was asked by Sam Moore, half of the seminal soul duo Sam & Dave, to stop using "Hold On I'm Comin'" at rallies. The campaign complied with Mr. Moore's request.

On the other side of the ballot, Jackson Browne ("Runnin' On Empty"), John Mellencamp (Our Country," "Pink Houses"), Survivor ("Eye Of The Tiger"), Jon Bon Jovi ("Who Says You Can't Go Home"), Van Halen ("Right Now"), the Foo Fighters ("My Hero"), Martina McBride ("Independence Day") and Heart ("Barracuda") have objected at various times to having their songs played at rallies. The Republican campaign took pains to emphasize in the Heart situation that it had paid the ASCAP fees that allowed it to use the track legally.