The McCain/Palin ticket recently learned the hard way that bad DMCA takedown requests can inhibit legitimate speech after having numerous YouTube campaign videos flagged by rightsholders for incorporating copyrighted music and video clips. The campaign contends that most of these were obvious fair use, and it wants YouTube to stop processing DMCA takedown requests in cases where YouTube decides that fair use applies. Because doing this requires highly-trained humans, the campaign recognizes that there's a problem of scale. Its answer? YouTube should only do this for US political campaign videos. Not surprisingly, YouTube wants no part of this "solution."

In a letter to the campaign yesterday, YouTube Chief Counsel Zahavah Levine made two key points. The first was that having YouTube determine "fair use" claims is difficult and risky for the site. As Levine notes, "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."

Some cases will be easy, but many won't, and YouTube could risk its "safe harbor" if it does not comply with takedown notices that are later found to be valid. The company is certainly not going to put itself in this situation, especially when it involves huge amounts of extra work at lawyers' prices.

While the McCain campaign suggests that this really won't take much time, and hey, even if it does, it's "worth the small amount of additional legal work our proposal would require," YouTube thinks that this all smells a lot like favoritism. Why would a global brand go to this trouble for US presidential campaigns but not for those in other countries? Etc.

As Levine puts it, "We try to be careful not to favor one category of content on our site over others, and to treat all of our users fairly, regardless of whether they are an individual, a large corporation, or a candidate for public office."

The other (major) issue here is that YouTube can't make accurate fair use decisions anyway, since it doesn't know most of the key facts about the cases at issue. For instance, YouTube doesn't know if the DMCA takedown issuer truly does control the rights claimed, and it doesn't know if the uploader had a contract to use the clips in question. "When two parties disagree," writes Levine, "we are simply not in a position to verify the veracity of either party's claims."

In the end, the real problem is bigger than takedown notices directed at political campaigns; "the real problem here is individuals and entities that abuse the DMCA takedown process." And YouTube hopes to work with whatever candidate ends up in the White House to combat DMCA abuse... in part by strengthening fair use. There's a proposal that sounds like change we can believe in.