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.
Slate, a popular news site, seems to be openly violating the Digital Millennium Copyright Act.
That law, much hated in cyberrights and computer security circles, is a thorn in the side to many researchers. The interesting question that we must ask is: Will Hollywood let Slate's probable violation slide, or will they lawyer up and go after the site owned by The Washington Post Co.?
A few days ago, Slate released a video mashup of footage of Hillary Clinton and a few scenes from the movie Election, starring Reese Witherspoon. The video is mildly amusing, and did at least remind me that Election is a funny film that I should probably watch again soon.
Cynthia Brumfield over at IP Democracy discusses the video mashup and briefly explores the issue of fair use:
"It quite literally fits [NBC Universal lawyer Rick Cotton's] idea of what wouldn't be considered fair use under a redefinition. [Columbia Law Professor Tim Wu's ] definition, however, would permit this video under fair use because nothing about it is a substitute for the original 'Election' film. It also, I would argue, enhances the film's value for those who have not seen it."
While I think she brings up an interesting point, I'm fairly certain the issue of fair use, at least in this case, is going to be cut and dry: Slate is in the wrong, and is being pretty blatant in its open infringement of copyright.
The few clips of Election in the Slate video are very high quality. The video is crisp, the sound is clear. As a result, I'd be willing to bet a few bottles of La Fin Du Monde that Slate got the video clips from a DVD. It's almost certainly not from a video cassette tape, and I highly doubt that the Slate team made a digital copy from cable TV.
DVD ripping software is widely available. Personally, I'm a big fan of Handbrake, but there are many other free software solutions out there. These software packages allow people to make a local video copy of a DVD movie. This is not as simple as it sounds, given that all Hollywood DVD discs are encrypted with a once-secret algorithm. The MPAA and others have vigorously gone after anyone who reverse engineered (or even published information on) the inner workings of the CSS algorithm used to encrypt DVDs.
Which brings me to my "favorite" law: the Digital Millennium Copyright Act (DMCA). This law, among its many horrible features, makes DVD copying a crime. DVD-ripping software is classed as a circumvention device, the use of which is a big no-no. Section 1201(a)(1)(A) of the U.S. code makes this pretty clear:
No person shall circumvent a technological measure that effectively controls access to a work protected under this title.
Ok, so we've now established that if Slate used DVD footage in its video mashup, then it is almost certainly violating the DMCA. What does that have to do with any possible fair-use defense to a copyright infringement claim? It turns out that to make a successful fair-use claim, you need to have a legitimate, licensed copy of the original work. As the courts wrote:
To invoke the fair use exception, an individual must possess an authorized copy of a literary work (Atari v. Nintendo 975 F.2d 832).
If Slate used DVD-ripping software, its unencrypted, DRM-free copy of the work (which they would have needed to cut and paste bits into their mashup) is in no way authorized. This means, unfortunately for Slate, that it would have no fair-use defense, and could thus face a copyright infringement lawsuit.
While I've spent the majority of this blog post describing potential illegal acts by Slate, the real criminal here is the U.S. Congress for passing the DMCA, and in one single act, putting hundreds of computer security and cyberrights activists at risk. As a Ph.D. student, the DMCA is a complete pain in my ass and makes my research extremely difficult. As a result, I routinely have to submit my projects to Indiana University's general counsel for a sign-off.
So why am I making this blog post? Most people have no idea that DVD ripping is illegal. Most artists, mashup creators, and video-bloggers are in the dark about the potential crimes they may be committing. Furthermore, the RIAA and MPAA have a long history in going after the little guy.
Slate (owned by The Washington Post Co.) has deep pockets. If the MPAA tries to make an issue out of this, it would create huge amounts of publicity, and perhaps lead to calls for an overhaul of the DMCA. (I can dream, right?) At the least, it would force the MPAA to burn through a few bucks.
Disclaimer: I am not a lawyer. This is neither legal advice nor real legal analysis. Don't make decisions based on my blog ramblings. However, this issue is essentially straight from the final exam in my copyright-law class from last year, so I'm fairly confident that I'm right.
Also, a tip o' the hat goes to Public Knowledge's Alex Curtis, whose offer of a T-shirt inspired this blog post.
Slate could not immediately be reached for comment.
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