YouTube Denies McCain 'Fair Use' Preferential Treatment

By October 17, 2008

The McCain/Palin campaign requested this week that YouTube evaluate presidential candidates' clips before removing them for alleged copyright infringement. They also requested that YouTube give preferential treatment to clips uploaded by candidates. Both requests were turned down. The site removes clips once it receives removal notices to avoid liability for infringement of the Digital Millennium Copyright Act. Senator McCain was a supporter of the DMCA when it passed in 1998.

Both McCain and Obama campaigns have uploaded video to the Web site that has since been taken down, some including network anchors and correspondents. While they are able to challenge these removal requests, the clips can remain offline for two weeks. Even though the clips can be posted in other places, such as the campaigns' own Web sites, the loss of YouTube traffic would mean diminutive viewing numbers. As the largest video streaming site, YouTube has become a critical part of publicizing for the presidential candidates.

The fair use debate has much history with the McCain campaign. While this recent installment has concerned video removal requests from networks such as Fox News, it previously focused upon recording artists whose songs were being used at publicized events without the artists' permission. Musicians, such as Jackson Browne, Heart and the Foo Fighters issued cease-and-desist notices for using the songs at rallies.

While the legality of the musicians' notices prevailed, the YouTube situation is different. The campaign's letter to YouTube says their videos "are clearly privileged under the fair use doctrine." The reasons given include that they are non-commercial, factual and brief. These factors exempt them from the DMCA. However, there are many non-campaign videos that fit this criteria. Hopefully this sobering inclusion in the chaos of media usage bureaucracy will inspire McCain to improve the experience for everyone, since he has been denied his preferential treatment.

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