YouTube pulled down then replaced Mitt Romney’s campaign spot “Political Payoffs and Middle Class Layoffs,” apparently finding a copyright infringement claim by BMG Rights Management to be baseless.
The dispute was over a clip of President Obama’s crooning of a line of Al Green’s “Let’s Stay Together” at Harlem’s Apollo Theater. BMG owns the rights to Green’s song and complained to YouTube that the video infringed on its copyright based on the Digital Millennium Copyright Act (DMCA).
YouTube, as required by the DMCA, responded by pulling the video but then just days later replaced it, apparently finding no merit in BMG’s claim.
Romney’s campaign video is intended to persuade viewers that the President has enriched political allies with payouts from the 2009 stimulus package, and includes audio of the President’s crooning:
Whether BMG’s copyright was violated was always debatable when looking at the issue of fair use, which allows non-copyright owners to use copyrighted material in certain circumstances.
As we’ve explained here at LegalZoom regarding fair use:
Basically, one defending against a claim of infringement can attempt to show that his or her use of the copyrighted work was “fair,” and therefore should not be considered infringement at all. Common examples of fair use are reviews of the copyrighted work where only a small sample is used, works that incorporate the original to create a parody (usually a send-up of or comment on the original) and works that “transform” the original into a wholly new work. It should go without saying that this is a hazy area of the law and one court’s fair use is another’s infringement.
In this instance, considering the President sang six words (a fairly small portion) of the song in question, the clip was used as part of a criticism or commentary, and there would likely be no negative effect on the market for the song itself, the Romney campaign certainly had a good argument to fight the takedown—but, as it turns out, it didn’t even have to present one.
The Romney video, though, is a good example, of how the DMCA’s provision requiring automatic takedown of allegedly infringing content can restrict and prohibit access to perfectly legal content. This is commonly called the “shoot first, ask questions later” approach.
In fact, it is one of the issues in a counterclaim filed by Hotfile against Warner Brothers, alleging “that Warner has willingly taken down files without holding the copyrights, game demos and even open source software. The false takedowns continued even after the movie studio was repeatedly notified about the false claims.” The Electronic Frontier Foundation (EFF) has filed an amicus curiae brief in the case asserting that such takedowns are illegal and should be sanctioned.
What do you think about the DMCA’s automatic takedown procedure and those who may abuse the process?