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McCain/Palin: copyright mavericks

By Rebecca Tushnet

Larry Lessig says the campaign's response to repeated notice-and-takedown requests is great: they call on YouTube to engage in fair use review of takedown notices against political campaign channels. To me, it seems like mere bluster (further comment deleted), because the campaign's assertion that YT wouldn't put its DMCA eligibility at risk by examining such notices for substantive merit before acting on them is, at best, unsupported in present caselaw. It is indisputable that a delay in restoring video after a counternotification has been filed is a really bad thing, but that's encoded in the DMCA itself, and if I were YT I'd want to stick with full compliance, especially as the Viacom suit drags on. Here's the countersuggestion: if the campaign is really serious about its First Amendment rights to use footage and other people's songs, then it should do what the EFF and Stanford's Fair Use Project have been doing and sue the people sending the notices for abuse of the DMCA. They're the ones causing the problem, right?

It's a nice piece of political theater, dragging the intermediary into the matter from the notice recipient's side--usually it's the copyright owner who wishes to recruit the intermediary to do its policing. And if it succeeds, I'll be very impressed. But I'm not sure it's supposed to succeed.

Full post as published by 43(B)log on October 14, 2008 (boomark / email).