ACLU, EFF, and AU’s CSM take on TV News, YouTube

by on October 22, 2008

A swarm of acronyms descended on other acronyms on Monday.  The ACLU, EFF, and AU’s Center for Social Media (CSM) wrote an open letter (PDF) to CBS, NBC, ABC, CNN, and other acronymed networks asking that each of them think twice before sending takedown notices to YouTube for what they see to be fair use content concerning the election.  The letter notes that:

Not only are such notices contrary to the law, but they also threaten to silence an exciting new source of political expression.

TechDirt seemed to miss the point by reacting to the letter with this statement in a recent story:

If the law is the problem, fix the law — don’t ask everyone else to play by different rules. That just sweeps the problems of the law under the rug, where they’ll get a lot less attention.

But the trifecta of concerned acronyms aren’t asking for TV networks to play by a different set of rules, or even to restrain themselves from excercising their legal right to file a takedown for infringement, they’re asking for the networks to follow the letter of the law and recognize blatant cases of fair use.  This seems fair and totally reasonable.

What I take issue with and what seems to be asking a lot in terms of legality, is the coalition’s second letter sent on Monday (PDF), this one addressed to YouTube.  It asks YouTube for two things:

1). Human review for all DMCA “counter-notices” sent by YouTube users and immediate restoration for non-infringing videos

and

2.) Human review for all subsequent DMCA takedown notices after a counter-notice has been provided.

I’m sure YouTube wants to avoid any human judgement calls being made on anything as it open them up to liablity.  Could the DMCA experts who read the blog comment on this?  What liability is YouTube exposed to if they follow these recommendations rather than doing what they do now?

Also, why doesn’t YouTube simply automate this process?  Filing a takedown should be one form and electronic signature, and a counter-notice should be the same.  Couldn’t the counter-notice serve as reason enough to put the video back up while the matter was being settled in the courts, if it even makes it that far.  The Obama and McCain organizations probably have some pretty boiler-plate language they could use to file quick counter-notices and restore their content.  Heck, emails could automatically be sent out as soon as a takedown is filed.

Would the DMCA have to be changed to allow for this sort of quick restoration of content and to allow the dispute to move off of YouTube and into the courts?  This seems much better than having YouTube be the judge of what’s fair use and what isn’t.  I’d rather leave that to actualy judges and I’m sure YouTube would as well.

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Cord Blomquist / Cord Blomquist spends most of his time pining for the singularity. To pass the time while waiting for this convergence, he serves as the New Media Manager at the Mercatus Center at George Mason University. Before landing this sweet gig, Cord hocked policy writing for the Competitive Enterprise Institute, toiled in the halls of Congress, and even worked in a crouton factory. In college, Cord spent his hours studying political philosophy and artificial intelligence, resulting in an unhealthy obsession with Lt. Commander Data. All of these activities will, of course, be viewed as laughable when he is ported from this crude meatspace into the nanobot cloud.

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