John McCain's presidential campaign has discovered the remix-unfriendly aspects of American copyright law, after several of the candidate's campaign videos were pulled from YouTube.
McCain has now discovered the rights holder friendly nature of the Digital Millennium Copyright Act, which forces remixers to fight an uphill battle to prove that their work is a "fair use."
However, instead of calling for an overhaul of the much hated law, McCain is calling for VIP treatment for the remixes made by political campaigns.
McCain's proposal: complaints about videos uploaded by a political campaign would be manually reviewed by a human YouTube employee before any possible removal of the remix. The process for complaints against videos uploaded by millions of other Americans would stay the same: instant removal by a computer program, and then possible reinstatement a week or two later after the video sharing site has received and manually processed a formal counter-notice.
With 11 homes and 13 cars, it's not terribly surprising that McCain is calling for special treatment for the YouTube videos of politicians. As for the "fair use" claims of the poor starving masses: Let them eat cake.
On Tuesday, the McCain campaign sent a formal letter to YouTube asking for this two-tier system for "fair use" complaints. Copyright-guru Larry Lessig called it a "fantastic letter", adding "bravo to the campaign" in a post to his blog. Since then, the technology press has been pretty supportive, although the focus of the coverage seems to mainly be along the lines of "McCain realizes that fair use claims are uphill battle." This is the wrong message to send, and as much as I respect Professor Lessig, I have to call him out here. He is wrong. McCain should be criticized for his attempt to get special treatment, and Google/YouTube need to treat all users the same way.
All claims of fair use are equal--yet some claims are more equal than others.
The only way we will get an effective overhaul of copyright laws will be by forcing politicians to suffer along with the masses. The minute a special set of rules are made for those in Congress, the incentive to fix the system will disappear. To drive this point home, consider the following:
During the confirmation hearings for Judge Robert Bork, the Washington City Paper obtained a copy of the Republican nominee's video rental records. Alarmed at the possibility that their own rental histories would be revealed by the press, members of Congress jumped to pass comprehensive privacy legislation for the video rental records of all Americans. Up until the Bork fiasco, there had been no real incentive to fix anything, but once the risk to their own records was made clear, Congress acted. As a result, we are now all protected by the 1988 Video Privacy Protection Act.
Compare this to the horrible situation at airports. Americans are routinely harassed, prodded, poked and humiliated by employees of the Transportation Security Administration. While we stand in line like sheep, congressmen get to skip through the security lines, avoiding the entire process. Given the fact that they don't have to suffer at the hands of TSA, it's not terribly surprising that they have little incentive to fix the problems faced by the rest of us.
These two examples should make it clear--we cannot allow politicians to receive special treatment in copyright and fair use disputes. If anything, campaign videos should receive substandard treatment. McCain's videos deserve to rot in purgatory at the back of the DMCA queue, behind videos of toddlers, skateboarding dogs, Starwars Kid remixes, and the hundreds of clips of the dramatic chipmunk. Perhaps then, the senator will throw his weight behind comprehensive copyright reform that'll result in real benefits for the rest of the remix-population.