One of the cutest politcal tube creations I’ve seen this season.

And I’ve seen a lot.

Amazing how much is packed in!

I especially loved the tanning beds.

Lee Lessig is fascinating guy who advocates for changing copyright laws (see my recent post referencing another political topic).  He’s also the legal wunderkind behind the Creative Commons, which I’ve found great for finding usage-friendly images from Flickr.

He’s written a post praising the McCain campaign for its letter to YouTube:

The McCain/Palin campaign has written a fantastic letter to YouTube… Here is the letter. Bravo to the campaign.

The thing I’m wondering about, of course, is who is filing copyright notices with YouTube to remove the McCain videos? Obama’s campaign for using clips of their commercials? News networks? Individuals who’ve made videos? It isn’t clear.

I found one part pretty chilling from the McCain campaign.  My thoughts after the jump:

As you know, the DMCA (and YouTube’s policies) do not contemplate re-posting of the video until at least 10 and up to 14 days following the receipt of a counternotice-even where the notice is frivolous and the counternotice entirely sound. See id. § 512(g)(2)(C).  But 10 days can be a lifetime in a political campaign, and there is no justification for depriving the American people of access to important and timely campaign videos during that period. Again, YouTube has nothing to fear by hosting non-infringing videos, let alone by re-posting them much sooner than 10 days.’

[emphasis and links added]

First, it’s interesting that McCain’s campaign is maintaining that, potentially, at least some of the notices are frivolous.

This means someone who’s YouTube policy savvy can search for pro-McCain/Palin videos, file a frivolous complaint, and YouTube will take the video down swiftly, and the McCain/Palin campaign cannot re-post the within 10-14 days.  They can have legit fair-use of the clip — or, worse yet — could even own the copyright in question themselves.  The campaign writes a counternotice but cannot repost the video even though the complainer has no standing.

Another section I found interesting, from the footnote:

In our experience, copyright holders often back down upon receipt of a counternotice, primarily because they never had any intention of following through on their takedown notices by filing lawsuits to protect their assertedcopyright interests. See 17 U.S.C. § 512(u)(2)(C). We believe this is so for two reasons. First, they recognize the weakness of their claims and do not wish to risk a loss on the merits. Second, even if they believe their claims have merit, they do not routinely register their live news broadcasts with the Copyright Office, and cannot obtain registration certificates within 10 days, even through an expedited application. Without such certificates in hand,they have no ability to file infringement actions. See 17 U.S.C. § 411(a)

[emphasis and links added]

Here’s a scenario:

• CNN or Fox or Comedy Central broadcasts a candidate or surrogate saying or doing something
• McCain campaign uses a clip in a YouTube video
• the clip clearly shows which network it was broadcast on
• networks do not register for copyright every single minute of news footage
• therefore, the network isn’t entitled to any copyright claim

I find this rather scary.  Because, to play Angel’s Advocate for a moment, you’re a writer for The Daily Show or Saturday Night Live.  You come up with a great bit about Obama or Biden.  Your rights as a writer include payment, etc. on DVDs.  Some of the biggest income for such writers can be in clips.  In copyright terms, using the punch line or lines may not be fair use because it uses too great a percentage of the material.  And the McCain campaign wants to use the funniest, nastiest clips in their commercials.

If they’re paying for a commercial (eventually) or hoping to get free coverage from YouTube hits, the commercial value of the clip can be nil from playing the punch lines too many times all over the universe.  Because Comedy Central doesn’t immediately register for copyright every single broadcast, the entire value of the jokes in reuse can be worn out.  The justification they are giving is that they’re short for time because the campaign will be over before all the rights can be figured out (they maintain, in their favor).

Ummm…. if I have to choose between a writer getting a few bucks on a DVD for retirement vs. a politician getting a few more digs in — where is the greater interest? I side with the writer.  And the actors.

On the other hand, let’s say that the clips are just news clips.  I’m not a big fan of media monopolies, but if companies can have the same legal rights as people, shouldn’t they be treated the same as an artist?

In this case, as on others, I find Lessig very consistent but don’t agree.  I think the campaigns can wait.  But YouTube may want to revisit it’s policy for instantly removing videos when someone files a complaint of copyright infringement.

Granted, copyright infringement can be abused to try to control the flow of ideas, but some of the rationales of the McCain campaign, are, unsurprisingly, a little McCreepy.

[Hat tip to Thomas Hawk for his FriendFeed item.]