Concerns about DMCA takedown abuse and fair use aren't limited to Lawrence Lessig, the EFF, and Free Press—John McCain and Sarah Palin are going all mavericky on the issue as well. Yesterday, their campaign sent a letter to YouTube complaining about rightsholders (especially news organizations) that filed illegitimate DMCA takedown notices and managed to have important campaign clips pulled at crucial times. The letter is yet more evidence of why human judgment—not just automated filtering or scanning—is crucial in such cases.

The letter opens by talking about how important YouTube has been for the campaign's efforts to get out copies of commercials, speeches, etc., but notes that the site's usefulness is being curtailed by "overreaching copyright claims." Many of these claims have involved "fewer than ten seconds of footage from news broadcasts in campaign ads or videos, as a basis for commentary on the issues presented in the news reports."

If that sounds to you like a classic "fair use" of such material, you're not alone. The McCain/Palin campaign calls these "paradigmatic examples of fair use" and even runs through the four factors that govern fair use exceptions. But "despite the complete lack of merit" to the claims, the videos were pulled as per YouTube's policy.

The campaign can file a counternotice, of course, and YouTube will eventually put the videos back up (at this point, if a rightsholder still believes the takedown request was valid, he or she can sue the creator of the video). But this process doesn't move at either "Internet speed" or "campaign speed," and having crucial attack videos down for days at a time is apparently hurting the campaign.

So the campaign proposes that YouTube get proactive in these cases and do manual review. Should YouTube screeners conclude that the use is fair, the takedown notice should simply be ignored. As the campaign points out, YouTube only has to act on "infringing" material; if it doesn't infringe, there's no need to pull it.

It's not always clear, of course, whether something is infringement and, given what's at stake for YouTube's ability to remain a "safe harbor," we're skeptical that the company will adopt the proposal. Because human screening of these complaints requires both people-hours and some significant training in fair use and copyright, it's likely to be expensive. To address that issue, the McCain campaign suggests that human screening apply only to political campaigns.

It's refreshing to see mainstream politicians (or at least their operatives and lawyers) speaking up for fair use and showing an understanding of the problems caused by overly-aggressive systems for flagging possible violations. Perhaps when those at the highest levels of government—not just the mothers of dancing toddlers—understand the problems here, a better copyright balance can be struck.

Further reading: