Intellectual Property Law

YouTube on Tuesday rebuffed a request from John McCain's presidential campaign to examine fair-use issues more carefully before yanking campaign videos in response to DMCA takedown notices.

"Lawyers and judges constantly disagree about what does and does not constitute fair-use," YouTube's general counsel Zahavah Levine wrote in a letter Tuesday. "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."

"We hope that as a content uploader, you have gained a sense of some of the challenges we face everyday in operating YouTube," she added.

The McCain campaign on Monday fired off a letter to YouTube complaining that the company had acted too quickly to take down McCain's videos in response to copyright infringement notices. McCain campaign general counsel Trevor Potter argued that several of the removed ads, which had used excerpts of television footage, fall under the four-factor doctrine of fair-use, and shouldn't have been removed.

But citing the DMCA, a controversial copyright law that McCain voted to approve a decade ago, Levine pointed out that YouTube risks being sued itself if it doesn't respond promptly to takedown notices.

"If ? service providers do not remove the content to such notice, they do so at their own risk because they lose their safe harbor," she wrote.

Further, Levine argued, the fair-use analysis is complicated, and the creators of the videos are better equipped to perform it. The uploader can then issue a DMCA counter-notice if they believe they're on solid legal ground, and YouTube will restore the video.

"YouTube does not possess the requisite information about the content in user-uploaded videos to make a determination as to whether a particular takedown notice includes a valid claim of infringement," Levine wrote. "The claimant and the uploader, not YouTube, hold all of the relevant information in this regard, including the source of any content used, the ownership rights to the content, and any licensing arrangements in place between the parties."

"The real problem here is individuals and entities that abuse the DMCA takedown process," she added.

"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, so that intermediaries like us can rely on this important doctrine with a measure of business certainty."