While the on-air sparring between Barack Obama and John McCain is finally over, another battle may be brewing, propelled by the very same commercials and Web videos the campaigns used to attack each other.
In a letter [PDF] sent to YouTube in mid-October, the McCain camp asserted its videos were being taken down unnecessarily because of "overreaching copyright claims" by TV networks including Fox and CBS, an action the letter said amounted to "silencing political speech." The McCain camp contended that the news clips featured in the videos, which were no longer than 10 seconds, were legally protected by fair use.
Throughout the campaign, media companies have sent "takedown" notices to YouTube, requesting videos be removed from the site. Under the Digital Millennium Copyright Act of 1998, YouTube can immediately remove an item to ensure it protects itself from lawsuits. The McCain camp did send "counternotices" asking YouTube to review the complaints and repost the video. But the DMCA allows at least a 10-day interval before the content in question is reposted, which as the letter noted, is "a lifetime in a political campaign."
"The issue raised by the McCain campaign is a really important one," said David Sohn, an attorney at the Center for Democracy and Technology, which sent a letter to both campaigns urging them to challenge the removal of ads. Stressing that this "isn't a partisan issue," Sohn said the group is "hoping that in the aftermath of the election, once some of the dust has settled, that both campaigns might be in a position to release some information about how often they encounter [takedown notices] so people can see if this problem is really out there."
According to the Electronic Frontier Foundation, a digital advocacy group, YouTube removed at least three McCain videos at the request of CBS, Fox and the Christian Broadcasting Network, and one Obama video at the request of NBC.
In their letter, McCain's lawyers requested that YouTube conduct more thorough reviews of takedown notices for campaign videos before complying with them. YouTube responded [PDF] that this request was unreasonable considering the site's large and diverse collection of videos. "In a world where you're getting sued left and right, it becomes a very strong incentive to take everything down, because you'll have the shield of the law," said EFF senior staff attorney Fred von Lohmann. A YouTube spokesperson would not comment on the issue.
The networks, too, declined to comment on copyright specifically, casting the issue as one of impartiality rather than intellectual property. A spokesman for CBN, Chris Roslan, said that the network, unlike most other news outlets, is a registered 501(c)3 nonprofit and therefore is not permitted by the IRS to endorse or oppose candidates: "That is why CBN requested their material be removed from the campaign ads." When reached for comment, CBS responded with the statement it sent out originally regarding McCain's "Lipstick" Web ad: "CBS News does not endorse any candidate in the presidential race. Any use of CBS personnel in political advertising that suggests the contrary is misleading."
The EFF has sent letters to both YouTube [PDF] and the media companies [PDF] that have flagged videos, expressing concern about the practice on behalf of the American Civil Liberties Union and other organizations. What's at stake, these groups contend, is the protection of free and vibrant speech, political or otherwise.
"It gives people the sense that they can silence those who they disagree with. That's the real fear," said von Lohmann, who wrote the EFF letters. "You end up turning all these great new [online] places for free expression into a free speech war zone where people are taking these down without any basis, and it poisons the space for everyone."
Like Sohn, von Lohmann stressed that this is an issue that transcends politics. "Both campaigns share this desire to prevent the news networks from squelching their right to take clips and make commentary," he said. "They should both file suits together to send a message that they're not just going to go quietly."
Siva Vaidhyanathan, a professor of media studies and law at the University of Virginia, said these particular instances echo a larger, culture-wide "unhealthy obsession with copyright." Vaidhyanathan, author of the 2001 book "Copyrights and Copywrongs", said he sees this is as a "very dangerous trend."
"It's only fairly recent that people have been bullying campaigns with copyright claims," he said. "I really think that we're going to need courts and Congress to step up and say that politics are a copyright-free zone."
Vaidhyanathan said he couldn't imagine a scenario where a news network could file a legitimate copyright claim on videos such as the ones at issue in this election and that these clips should "obviously be considered fair use." He said that news has the lowest possible level of protection under copyright and, like von Lohmann, he warned of the negative repercussions that could ensue if political videos continue to be censored.
"If you're going to bring copyright into political speech, you're threatening political speech at its core," Vaidhyanathan said. "You've got to draw the line somewhere, and it's got to be political speech."