IP Democracy: McCain Commercials Still Available on the Web

An interesting intellectual property donnybrook cropped up today after the McCain-Palin campaign released a letter (PDF) it sent to YouTube complaining that its campaign commercials have been pulled from the site after the Google-owned video giant received take-down notices under the Digital Millennium Copyright Act (DMCA). Campaign General Counsel Trevor Potter said in the letter that short clips from news broadcasts contained in the allegedly infringing videos meet the statutory definition of fair use and asked YouTube to conduct an internal legal analysis whenever a copyright holder requests the take-down of a political commercial lest political speech, which should be the most protected speech of all, gets chilled.

Larry Lessig, one of the original copyleft advocates, says "Bravo to the campaign." Public Knowledge took the opportunity to point out the irony of McCain-Palin invoking the DMCA on the same day that President Bush signed the Pro-IP Act, which gives copyright holders (read Hollywood and the record companies) even more power to control the use of their content on the Internet. Maybe now "Congress will consider taking a look at the beneficial effects fair use has on society, including on political speech," Public Knowledge President Gigi Sohn said in a statement.

No word yet from YouTube, although it's safe to assume that the company doesn't want the responsibility (or potential liability) of deciding what constitutes fair use. And no word from the Obama-Biden campaign either -- Robert Bauer, General Counsel of Obama for America, was copied on the letter in the hopes that the Democratic ticket would join in the effort.

The letter doesn't specify which commericals the campaign is referencing although Saul Hansell cites the abhorrent "Lipstick on a Pig" commercial, which includes a few-second clip from the CBS Evening News with Katie Couric. Last month, CBS asked YouTube to take down this commercial saying that it doesn't want to appear to be endorsing any candidate. As excreble as that commercial is, the McCain campaign is right - the short clip of Katie Couric would undoubtedly meet any judge's definition of fair use.

Watch for yourself. Another irony surrounding this complaint is that even though the commercial is not seemingly available on YouTube anymore, it's still available all over the net. I found it at DailyMotion after a simple Google search.

Either CBS' attorneys overlooked a lot of web sites in issuing its take-down notice or the sites that still host the commercial are ignoring them. It's also possible that the McCain-Palin campaign or Republican supporters are simply re-uploading the commercial every time it's taken down.

One thing is for sure: YouTube seems to be the only place that counts for the McCain-Palin campaign...and all other campaigns. Although YouTube was crucial to politics before (remember the Macaca video that sunk George Allen) it has become with this election season the undisputed dominant video hub for anybody interested in politics.

Posted by Cynthia Brumfield on October 14, 2008 10:06 PM to IP Democracy