This problem isn’t limited to New York Assembly races. It has directly affected the presidential campaigns. Last year, Fox News ordered John McCain to stop using a clip of himself at a Fox News-moderated debate. Last month, Warner Music Group demanded YouTube remove an amateur video attacking Barack Obama that included its music, while NBC asked the Obama campaign to pull an ad that included some NBC News video with Tom Brokaw and Keith Olbermann. No doubt, these corporations are simply trying to avoid controversy or embarrassment, but by claiming infringement, they are effectively censoring political speech.

Senator McCain has taken a lead in responding to this copyright extremism. In a letter addressed to YouTube last week, the McCain campaign rightly criticized the Web site’s decision to remove work that is “clearly privileged under the fair use doctrine” of copyright law and called upon YouTube to be more protective of political speech by conducting a more extensive review of material before it gets taken down.

Copyright law has become a political weapon because of a statute passed a decade ago: the Digital Millennium Copyright Act. That law tells carriers like YouTube that unless they quickly remove material posted by users that is alleged to infringe copyright, they themselves could be liable for the infringement. Understandably, YouTube and others have become quite vigilant in removing allegedly infringing content. Indeed, the Web site has gone beyond the requirements of the law and has begun to shut down the accounts of people alleged to have violated copyright just three times.

The digital copyright act gives the alleged infringer an opportunity to demand that the content be restored. But in the height of a political campaign, even a few hours of downtime can be the difference between effective and ineffective. The law thus creates a perfect mechanism to censor political speech during the only time it could matter. Recognizing this, campaigns and their allies are beginning to exploit this weapon.

The answer to this problem is not to abolish or ignore copyright. Instead, the law should be revised, bringing focus to the contexts in which its important economic incentives are needed, and removing it from contexts where it isn’t.