Earlier this week, YouTube took down videos attacking President Obama due to a copyright claim by music publishing giant BMG Rights Management. The clips, which featured Obama singing Al Green’s hit “Let’s Stay Together,” fell squarely within the Supreme Court's fair use guidelines. YouTube's action illustrates how its copyright enforcement policy allows politically motivated organizations to control what its audience sees and hears.
The Romney incident is especially troubling because a corporation used copyright law to censor a political campaign and a press outlet. BMG Rights Management passed over numerous unauthorized copies of Al Green’s song on YouTube to single out the ones that mocked Obama. The organization is no stranger to issuing copyright claims on YouTube, and it certainly knows what constitutes fair use.
YouTube came under heavy fire during the few days that they were unavailable (though criticism of BMG Rights Management was surprisingly muted). Timothy B. Lee at Ars Technica was convinced of a nefarious plot at YouTube, since his source there “refused to explain takedown policies.”
Alas, the blame actually lies with a series of machines. YouTube's copyright claim process, whether for a Digital Millennium Copyright claim or a complaint lodged via the site's Content ID System, is completely automated. You fill out a Web form, click a button and bam, the video is removed, just like that.
YouTube offers a counterclaim process to handle abusive takedown requests. However, it warns prospective counterclaimants that they should be prepared to back up their claim in court. Counterclaims can take weeks to process. (It took only days to restore Romney’s videos in this high-profile case).
YouTube representatives declined to comment. However, the company's executives have said in prior cases of copyright claim abuse that there's no other way to handle claims. With 72 hours of video content uploaded every minute, the site couldn't possibly monitor clips manually. Moreover, leaving humans out of the process washes YouTube’s hands of potential lawsuits.
Althought it might suit the company, YouTube's process is deeply flawed from a copyright point of view. It assumes that all claims are rightful, and because the takedowns are processed almost instantaneously, it invites abuse on a regular basis - and not just by Hollywood producers and RIAA-types. YouTube pranksters have removed music by Justin Bieber and Lady Gaga, angry ex-boyfriends have removed incriminating voicemails, and feuding YouTubers have censored each other for random digital vendettas. None of these frivolous claims would have been possible if YouTube’s copyright claims weren’t automated.
Users have been complaining, even petitioning, the site for years. YouTube warns that those issuing frivolous claims will be punished, but one would be hard-pressed to find such a case. With a season of intense political debate coming with the 2012 U.S. presidential election, the Romney case only highlights the pressing need for YouTube to overhaul its copyright claim process.