John McCain, Forgetting His Own Support Of Fair Use On YouTube, Tries To Use Copyright To Take Down His Own Ad

You may recall that, back during the 2008 Presidential election, the Presidential campaign of John McCain sent YouTube a letter, complaining that the video site did not take fair use into account when deciding to pull down videos after receiving copyright complaints. Apparently, some people had been issuing copyright claims on videos related to his campaign that he believed were fair use, and he was quite upset about it. In particular, McCain was upset about videos his campaign had uploaded that included news clips that were taken down. He insisted this was not just fair use, but that YouTube was an important platform for political speech, and should be much more careful before pulling down political videos.If you can't read that, here are just a few choice quotes from the letter:

YouTube is to be congratulated on the groundbreaking contributions it has made to the political discourse.... ... overreaching copyright claims have resulted in the removal of non-infringing campaign videos from YouTube, thus silencing political speech..... ... It is unfortunate because it deprives the public of the ability to freely and easily view and discuss the most popular political videos of the day.... We recognize that the DMCA provides a counternotice procedure (of which we have availed ourselves several times), but this procedure, and the way YouTube has implemented it, provides inadequate protection for political speech, particularly in the context of a fast-paced political campaign.....

From there, the McCain campaign went on to propose that political campaigns get special treatment, and that any videos associated with a political campaign get a more thorough human legal review prior to a takedown. If this sounds familiar, it's the same idea we actually heard proposed by the Copyright Office at their recent hearings. That suggestion of carving out political speech for special rights is a very bad idea, but McCain wasn't wrong to note the problem of copyright being used to censor political speech. You know where this is heading, right? It appears that McCain's current campaign (for Senate re-election in Arizona) has... issued a copyright takedown on a video posted by Rep. Ann Kirkpatrick, who is challenging him for his Senate seat. Kirkpatrick apparently uploaded a McCain campaign ad from his 2010 Senate campaign about completing "the danged wall" on the border with Mexico, and uploaded a version with Spanish subtitles. Here's the original ad:Obviously, "the wall" is a political hot potato -- especially this election season -- and Kirkpatrick is (quite reasonably) trying to remind voters (especially Hispanic voters) of McCain's strong support for the wall. That seems like pretty clearly protected free speech in a political campaign. The exact kind of thing that a former McCain campaign once suggested deserved extra protection as fair use. But, now he's just abusing the copyright takedown process against a rival. McCain's campaign suggestion that this was purely about copyright is laughable:

The ad in question was not blocked because of its content, according to Lorna Romero, a McCain campaign spokeswoman. "The Kirkpatrick campaign launched a digital ad which was a clear copyright violation and YouTube agreed," Romero said.

Again, there's a strong argument that this is fair use. It's certainly not undermining the market for 2010 McCain campaign spots. And, of course, it's not like McCain created the commercial because of the copyright. The whole thing is obviously done to censor a political rival because the message is embarrassing in the context Kirkpatrick raised it in. It seems like the McCain campaign of today, might want to refresh what the McCain campaign of 2008 had to say:

While the issues presented by YouTube and other Internet technologies are new, the needto prevent meritless copyright claims from chilling political speech is decidedly not. Thirtyyears ago, a federal judge confronting a copyright claim over the use of music in a politicaladvertisement correctly recognized the importance of preventing copyright from interfering withpolitical candidates' free and full exercise of their First Amendment right to vigorously debatethe issues of the day:

In the context of this case, the Court must be aware that it operates in an area ofthe most fundamental First Amendment activities. Discussion