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John McCain yesterday joined Larry Lessig and other critics of strong copyright protections — if not on the general principles, at least on the way they apply to his campaign.

McCain’s campaign sent a letter (PDF here) to YouTube, making the following complaint:

Numerous times during the course of the campaign, our advertisements or web videos have been the subject of DMCA takedown notices regarding uses that are clearly privileged under the fair use doctrine.

Apparently YouTube has received complaints from the TV networks about use within McCain’s political ads of clips of a few seconds from news shows. The letter goes on to propose that YouTube use a different protocol before responding to these takedown notices.

The problem is that, much as we all might prefer YouTube to resist poorly founded copyright infringement claims, they would be crazy to do so. The reason is that the Digital Millennium Copyright Act gives them a “safe harbor” from prosecution if they take the offending clip down immediately, and let the party who put it up file a counterclaim. Why would the YouTube folks risk prosecution, when they can let CBS and the McCain campaign fight it out at no risk to themselves?

Well, perhaps because YouTube is owned by Google, whose mission is “to organize the world’s information and make it universally accessible and useful.” But that is probably too much to hope for, when the real problem here is not YouTube’s behavior, but the way the law is written. The DMCA invites this kind of censorship, and in a political campaign, where days count, the time required for the claim-counterclaim protocol renders the arguing pointless.

So perhaps, instead of writing to YouTube, Senator McCain might update his Technology policy page, which now states:

While the Internet has provided tremendous opportunity for the creators of copyrighted works, including music and movies, to distribute their works around the world at low cost, it has also given rise to a global epidemic of piracy. John McCain supports efforts to crack down on piracy, both on the Internet and off.

Perhaps instead of pledging to strengthen the hands of the copyright holders, he might instead acknowledge that tools for cracking down have already gone too far.

This entry was posted on Wednesday, October 15th, 2008 at 8:51 am and is filed under Owning bits—copyright. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.