The hotly contested 2008 presidential election is spilling over into yet another corner of cyberspace. The McCain/Palin Republican campaign is challenging a decision by YouTube to pull several of its videos and election advertisements from the popular video-sharing site, an action YouTube says was necessary under terms of the Digital Millennium Copyright Act (DMCA).
In a letter earlier this week to YouTube CEO Chad Hurley, McCain/Palin general counsel Trevor Potter praised YouTube for “the groundbreaking contributions it has made to the political discourse, including through the CNN/YouTube primary debates.” But by removing the campaign’s videos, Potter argued, YouTube has “deprived the public of the ability to freely and easily view and discuss the most popular political videos of the day.”
All the videos submitted by the McCain/Palin campaign, Potter said, are protected under the copyright doctrine of “fair use.” He asked YouTube to conduct a full legal review of all political videos to see if they are protected by fair use before taking them down.
“Surely the protection of core political speech,” Potter said, “and the protection of the central role YouTube has come to play in the country’s political discourse, is worth the small amount of additional legal work our proposal would require.”
On Wednesday, the YouTube press office released a copy of a reply sent by YouTube’s chief counsel, Zahavah Levine, to Potter. Levine expressed appreciation for Potter’s understanding that YouTube cannot vet every video submitted to the site.
“Lawyers and judges constantly disagree about what does and does not constitute fair use,” Levine said. “No number of lawyers could possibly determine with a reasonable level of certainty whether all the videos for which we receive disputed takedown notices qualify as fair use.”
But Levine added that while YouTube recognizes the importance of the videos uploaded by the presidential campaigns, the…