YouTube to McCain: No DMCA pass for you.

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YouTube has deflected the McCain campaign's request for special treatment on takedown requests the site receives under the Digital Millennium Copyright Act (DMCA).

In a letter from YouTube Chief Counsel Zahavah Levine sent Tuesday, a day after the McCain camp sent their request [PDF], the site acknowledged the import of the presidential election, but cited its desire to be fair to all of its users, and to not give preference to any cause:

While we agree with you that the US presidential election-related content is invaluable and worthy of the highest level of protection, there is a lot of other content on our global site that our users around the world find to be equally important, including, by way of example only, political campaigns from around the globe at all levels of government, human rights movements, and other important voices. 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.

PCMag has a good rundown of the process with which the McCain campaign is taking issue:

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If someone spots a video on a site like YouTube that they believe to contain copyrighted material, they can file a DMCA takedown notice with YouTube. YouTube will remove the video and notify the person who posted it. If the owner believes they are within their rights to post the material, they can file a counter notification and YouTube will investigate. If the video is found to contain no offending material, YouTube must re-post the video within 10 to 14 days.

McCain campaign web ads such as one that used a Katie Couric quip about sexism in the campaign had been served with these DMCA takedown notices and taken down by YouTube. The McCain campaign argues that such takedowns shouldn't be made without an examination of whether they do in fact infringe on a copyright holder's rights.

Techdirt had news of the McCain campaign's Monday request for "a full legal review of all takedown notices on accounts controlled by ... political candidates and campaigns" on Tuesday, and it pointed out how unusual it was for a political campaign to bring up fair use at all, let alone champion it.

In its response to the McCain camp, YouTube's Levine turned the "fair use" discussion back to DMCA abusers:

The real problem here is individuals and entities that abuse the DMCA takedown process....
We look forward to working with Senator (or President) McCain on ways to combat abuse of the DMCA takedown process on YouTube, including by way of example, strengthening the fair use doctrine.

Whether the McCain campaign succeeds in getting its web ads reposted on the site, the real winner in all of this appears to be fair use. As the Electronic Frontier Foundation's Fred von Lohmann wrote in a blog post Tuesday, "it's heartening to see a presidential campaign recognize the importance of fair use and 'remix culture.' "

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