by Kate DiGeronimo

The 2008 Presidential Election utilized the breadth of the Internet in ways previously unseen. As a new public commons, the Internet was the medium through which many Americans gathered information in making decisions about who to vote for on Election Day. Politicians realized that the Internet was to have a significant role in persuading voters early in the cycle.

CNN teamed up with Youtube.com to host a debate among the candidates for the Republican and Democratic nominations where all the questions came from videos submitted by Youtube users.¹ After the debate, all the candidate’s answers were made available on Youtube’s website without restriction. A flurry of user generated content was posted on the Youtube website, including the memorable “Obama Girl” videos. Campaigns soon began posting television ads on the website, as well as creating ads specifically for their websites and the Youtube website.

On October 13, 2008, the McCain-Palin Presidential Campaign sent Youtube a letter requesting it change its policies regarding Digital Millennium Copyright Act² (“DMCA”) challenges to content hosted on its website.³ Specifically, Youtube’s policy is to automatically remove video content from its website for a period of 10-14 days upon the filing of a DMCA violation allegation.

Youtube removed multiple political ads which the McCain-Palin Campaign had posted on its website after media outlets filed complaints alleging the campaign violated the DMCA by using their footage without permission.⁴ McCain-Palin argued that their use of the footage, often footage of themselves appearing on news broadcasts, falls squarely within the fair use exemption of the DMCA,⁵ and that Youtube’s policy of automatically suspending content after a DMCA violation complaint chilled their Constitutionally protected speech. The letter argued that time is of the essence in a political campaign such that 10 days can have a substantial impact on the success of the candidates on Election Day.

On October 14, Youtube’s counsel responded to the McCain-Palin campaign stating that they simply did not have the ability to operate in any other manner.⁶ The letter states:

“Your suggestion that we limit our reviews and fair use analysis to ‘political candidates and campaigns” attempts to address our scale issue, but it does not address the information problem mentioned above. The fact remains that we do not know who owns what content included in user uploaded videos, who uploaded those videos or what authorization the uploader may or may not have to use the content. Moreover, while we agree with you that the U.S. Presidential election-related content is invaluable and worthy of the highest level of protection, there is a lot of other content on our global site that our users around the world find to be equally important, including, by way of example only, political campaigns from around the globe at all levels of government, human rights movements, and other important voices. We try to be careful not to favor one category of content on our site over others, and to treat all of our users fairly, regardless of whether they are an individual, a large corporation or a candidate for public office.”⁷

The letter then stated that “[t]he real problem here is individuals and entities that abuse the DMCA takedown process;” YouTube then requested that McCain work with the company to solve the problems the DMCA presents to content providers by “strengthening the fair use doctrine, so that intermediaries like us can rely on this important doctrine with a measure of business certainty.”⁸

While the DMCA provides standing to sue based on clearly false takedown notices, litigation takes time that political campaigns don’t have. Youtube users posting political content don’t have incentive to spend the money on litigation because whatever event has inspired them–be it an election or a congressional vote –will likely be concluded by the time litigation concludes.⁹

Another option is for political campaigns to form contracts with media outlets prior to appearing on film that make clear the campaign is allowed to use footage without restriction. This is indeed what CNN agreed to in hosting the Youtube debates.¹⁰ While this is possible for high profile campaigns, like those of politicians running for President or positions in the Senate, campaigns with less money or for politicians running for local office are at the mercy of the media outlets. It is unlikely a media outlet like NBC will bother with signing a contract with a congressional district candidate from Queens because the candidate needs NBC more than it needs an interview with him or her to score ratings. For these smaller, less popular campaigns, the fair use exemption is the only bargaining chip they have to rely on.

While Youtube’s goal of treating all users fairly by not favoring one form of content over another’s is admirable,¹¹ it cannot justify the disparate impact its policy has on uploaders of political content. While a 10-14 day takedown of a home video clip that contains a song owned by a large record company won’t affect that family in the long run, the 10-14 day suspension of a political ad that uses footage of a candidate on a local television program will delay the spread of that candidate’s message and could change the course of an election.

While Youtube maintains it would be a hardship to police all its hosted content, there are ways for it to minimize the potential harm to campaigns. Youtube already requires a person to create an account before uploading content onto its server. It would be easy for Youtube to create a specific class of account for uploaders of political content, which could be exempt from its current takedown policy. For these users, there could be a requirement that they provide some background on the political issues or situation they are addressing, which would help to solve Youtube’s claimed “information” problem.12 When a challenge is made to any content uploaded by these accounts, Youtube could prioritize settling that matter. Additionally, Youtube could impose penalties for anyone falsely signing up for any such special account, such as permanent suspension or any other number of options. None of these would require much more effort than Youtube already puts into policing its website, and it would not require waiting for Congress to strengthen the fair use exemption.

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¹ See Lessig Blog, Free Debates: CNN Has Announced It Will Free the Debates, May 5, 2007.

² 112 Stat. 2860 (1998).

³ Letter to Youtube from McCain-Palin Campaign, October 13, 2008.

⁴ Id.

⁵ The fair use exemption is codified at 17 U.S.C. §§ 107. It states that fair uses of a copyrighted work, “including…purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

⁶ See Youtube Response Letter to Senator McCain, October 14, 2008.

⁷ Id.

⁸ Id.

⁹ Of course, there are other benefits to litigation. E.g., MoveOn.org and Brave New Films, with the help of the Electronic Frontier Foundation, filed a lawsuit against Viacom for making a false DMCA violation challenge resulting in the removal of their content from Youtube. (You can read the complaint here.) The lawsuit was dismissed when Viacom, in response, offered to change its company policy to require manual review of every video targeted as a potential DMCA violation, and setting up a website and email “hotline” as well as promising a review of any complaint within one business day and a reinstatement if the takedown was indeed in error. Electronic Frontier Foundation, “MoveOn, Brave New Films v. Viacom.” However, this does little to help when spreading one’s message is a time sensitive matter.

¹⁰ See supra, note 1.

¹¹ See supra, note 7, and accompanying text.

¹² Id.