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Editorial: McCain Gets Bit By Copyright Law On YouTube Ads

This story was written by ISD Editorial Board, Iowa State Daily

Oh, poor John McCain. Seems like the Arizona senator is getting a taste of what it feels like to be a minuscule, insignificant copyright violator on YouTube.

Earlier this week, the McCain campaigns general counsel sent a letter to YouTube, requesting that instead of immediately taking McCains videos down, YouTube commit a full legal review of all take-down notices on videos posted from accounts controlled by [at least] political candidates and campaigns.

The McCain videos in question are ones that use news clips or songs owned by media behemoths, such as Fox and Warner. One popular example was the Obama Love video from this summer, in which the campaign attacked the medias infatuation with Barack Obama, set to a backdrop of Frankie Vallis Cant Take My Eyes Off of You.

The McCain campaign argues these videos shouldnt be pulled because they fall under the Fair Use Doctrine, which considers four factors: That the use is noncommercial and transformative; that its factual; the amount and significance of source material used; and the impact of the use on the original works commercial value.

Per McCains general counsel: The uses at issue have been the inclusion of fewer than 10 seconds of footage from news broadcasts in campaign ads or videos, as a basis for commentary on the issues presented in news reports, or on the reports themselves. These are paradigmatic examples of fair use, in which all four of the statutory factors are strongly in our favor.

(Were not copyright lawyers, but Fox News responded to an earlier McCain fair use claim by saying the use was in a video designed to raise funds, which they claimed was a commercial use.)

The McCain campaign characterizes their situation as such: [The removal] is both unfortunate and unnecessary. It is unfortunate because it deprives the public of the ability to freely and easily view and discuss the most popular political videos of the day. And it is wholly unnecessary from a legal standpoint.

Wholly unnecessary from a legal standpoint. Somebody had better get Viacom and Sony BMGs lawyers on the phone.

Still, as fun as it is to gloat at someone who voted for the legislation that causes these take-downs to face its wrath, McCains campaign has a point. YouTube aggressively pulls down videos from alleged copyright infringers, and the onus is moved to the common citizens to prove what they were doing was fair use. Thats in no small part to aggressive lobbying and big-spending media conglomerates with great teams of lawyers.

Political speech has long been held as the most sacred speech protected by the First Amendment. McCains campaign is right YouTube does need to find a new way to evaluate these claims. And not just for McCain, Obama and other politicians, but for Joe Six-Pack and Joe the Plumber, too.

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