A YouTube video produced by the Romney for President campaign got hit by a takedown request on Monday, highlighting the challenges that the Digital Millenium Copyright Act can pose for free speech.

For days, President Obama and former Massachusetts Governor Mitt Romney have been trading barbs over Romney's role in layoffs initiated by Bain Capital a decade ago. Obama's latest salvo, released over the weekend, was an ad featuring Mitt Romney singing "America the Beautiful" over images of shuttered American factories. The Romney campaign responded in kind, posting an ad that shows Pres. Obama singing Al Green's "Let's Stay Together" juxtaposed with "headlines about Obama rewarding lobbyists and campaign donors."

But as the Huffintgon Post notes, if you try to watch the Romney campaign's ad, you'll be greeted with a message that says "This video is no longer available due to a copyright claim by BMG_Rights_Management."

Neutering fair use

The Romney ad seems like as clear-cut a case of fair use as can be imagined. Obama's singing is a core part of the ad's message, and copyright law explicitly mentions commentary and criticism as justifications for fair use. And it's hard to imagine the ad harming the market for "Let's Stay Together."

Yet the "notice and takedown" process established by the DMCA and apparently utilized by BMG Rights Management in this case doesn't give the Romney campaign much recourse. It can file a counter notice stating that it believes its clip to be fair use, but YouTube is required to wait a minimum of 10 days before putting the video back up. In a campaign where the news cycle is measured in hours, 10 days is an eternity.

Theoretically, there are penalties for bad-faith takedown notices, but that provision of the DMCA is almost toothless in practice. In 2010, a federal judge sided with Stephanie Lenz, a mother whose video of her toddler dancing to a Prince song was taken down by Universal Music Group, which controlled the rights to the song.

The judge agreed with Lenz that the brief snatches of Prince's "Let's Go Crazy" heard in the background of the video were fair use. But Lenz bore the burden of proof to show that UMG had acted in bad faith, which is extremely difficult to prove. As a consequence, such lawsuits don't do much to deter rightsholders from over-zealous use of takedown powers.

History repeating

This is not the first time a bogus takedown request has hit a presidential campaign. In 2008, Sen. John McCain, the Republican nominee for president, sent a letter to YouTube complaining that "overreaching copyright claims" were preventing his campaign from posting television clips to its website. The letter described the clips as "paradigmatic examples of fair use."

But YouTube chief counsel Zahavah Levine fired back with a letter pointing out that trying to assess fair use on a case-by-case basis at YouTube's scale would be extremely difficult. In many cases, YouTube doesn't even have the information it would need to assess whether a particular clip is fair use. Given that declining to take down a clip could expose the site to liability, YouTube has decided to play it safe and comply with the DMCA's takedown procedure. No exceptions, even for presidential candidates.

In 2008, YouTube expressed the hope that whichever candidate won the White House would help to reform the DMCA's takedown process to avoid this kind of problem. Unfortunately, that didn't happen. Instead, Congress nearly passed the Stop Online Piracy Act, which would have given incumbent copyright holders even broader powers to take down content they didn't like.

If Romney wins the election in November, we hope the experience of having his ad taken down will inspire him to make reforming copyright a priority for the Romney Administration. But we're not going to hold our breath.

Correction: The original headline for this story described BMG Rights Management as a "major label." It's actually a music publisher (representing songwriters) not a label (representing recording artists).