Legal experts: YouTube’s removal of Romney ad may abuse ‘fair use’ law

Josh Peterson | Tech Editor

A takedown request by BMG which led to YouTube’s removal of a Romney campaign ad might be an abuse of the law, legal experts told The Daily Caller Tuesday. The ad attacked President Obama’s history of giving major donors significant political appointments.

It also featured an 8-second clip of the president singing the lyrics, “I’m so in love with you,” from the Al Green song “Let’s Stay Together.”

YouTube — in compliance with the Digital Millenium Copyright Act (DMCA), a law that criminalizes copyright infringement — took down the ad after BMG Rights Management, a music publisher, made a copyright claim against the ad.

The ad, called “Political Payoffs and Middle Class Layoffs,” later reappeared on YouTube late Tuesday afternoon through another account.

Daily Caller blogger Matt Lewis drew attention to YouTube’s move Monday, noting that BMG is owned by the same parent company as Obama’s book publisher, Crown/Random House. The financial, technological and political support the president has historically received from many high-level Google executives is also no secret. Ben Howe at Red State suggested that BMG and YouTube, which is owned by Google, might be “playing politics.”

Corynne McSherry, Intellectual Property Director at the Electronic Frontier Foundation (EFF), told TheDC that taking down the ad was both “ridiculous” and “dead clear on fair use.”

“Fair use” describes the section of federal copyright law that covers circumstances where it is legal to use small portions of copyrighted works without obtaining permission or paying royalties. Republishing a brief excerpt for the purpose of parody is one of those permissible uses.

McSherry told TheDC that material is removed from websites for improper reasons so often that her organization stopped blogging about every occurrence. Instead, EFF now has a “hall of shame” on its website.

“Improper takedowns happen all the time,” McSherry explained, “and they happen because large copyright holders don’t do what they need to do under the law, which is to consider whether the use is actually authorized.”

She accused large content companies and other copyright holders of thinking only about whether they have licensed material they own — not about whether someone else’s actions constitute fair use under the law.

“You don’t need political motivation. You don’t actually need a conspiracy. It’s just going to happen anyway,” McSherry said. “To be honest, I almost find that more depressing. So much important political speech has been taken down because the copyright holder can’t be bothered to do anything else.”

Trevor Potter, general counsel for the John McCain 2008 campaign, told TheDC that one of the problems modern campaigns face “is the ability of opponents to force the take-down of You Tube clips, with virtually no recourse.”

“It is very easy to file a complaint alleging copyright or other violations, and YouTube is then obligated to take down the allegedly offending material or face legal liability,” said Potter. “The process affords campaigns no real opportunity to defend their postings, to argue that it is ‘fair use’ under the law, or protected as core political speech.”

But EFF noted in 2008 that the presidential campaigns had “no trouble getting the same ads out on television and radio, options not available to most YouTubers.”

Berin Szoka, president of the tech policy think tank TechFreedom, told TheDC that taking down the Romney ad was a “crazy abuse of the DMCA.”

This is not the first time YouTube has been caught in the middle of political campaigns vying for voter influence, nor is the practice one-sided.

During the 2008 presidential election cycle, NBC demanded YouTube pull a pro-Obama advertisement from its website because the ad included unauthorized footage of NBC News and MSNBC broadcasts.

A few weeks earlier, CBS succeeded in getting YouTube to remove a McCain campaign ad showing a clip of then-CBS anchor Katie Couric chastising Obama.

In both cases, content companies filed complaints with YouTube against the political campaigns.

The McCain campaign, however, lost so many of its YouTube ads this way that it finally wrote to YouTube with its grievances. The McCain campaign identified CBS, Fox News and the Christian Broadcasting Network as the instigators behind the takedowns.

Fearing that DMCA-driven ad takedowns could become permanent under the infamous Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA), companies like Google and Wikipedia, along with a host of advocacy groups including EFF and TechFreedom, ferociously opposed the bills. The often-touted fear was that SOPA and PIPA would criminalize children for posting their performances, or “covers,” of their favorite songs on YouTube.

McSherry told TheDC that in situations where there is “a clearly improper takedown of political speech … YouTube needs to take that extra step and put the video back up.”

“It seems to me that this is a situation where YouTube should be stepping in and posting this video itself, and I think that YouTube really needs to be doing that, not just in this case, but whenever there is a clearly improper takedown,” she said.

BMG did not immediately respond to TheDC’s request for a statement. Google declined TheDC’s request for comment.

This article has been updated for clarity.

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