A few weeks back, radio host Rush Limbaugh pushed the Sandra Fluke saga into new legal territory by firing off a bogus DMCA notice to YouTube demanding it take down a seven-minute montage of Limbaugh's "most vile smears." The creators of the video, left-leaning political site DailyKos, correctly pointed out that the video is fair use and joined us in calling on YouTube to reinstate the video. Happily, YouTube did just that.
Unfortunately, this episode may foreshadow a new wave of DMCA abuse targeting political activity. Here’s why: the DMCA's "notice-and-takedown" procedure says that in order to maintain a safe harbor status online service providers (like YouTube) must remove content as soon as they get a valid takedown notice. Then if the original poster of the content (in this case, DailyKos) responds with a counter-notice, the service provider (again, YouTube) has 10-14 days to put it back up.
That 10-14 day period can give DMCA abusers two weeks of censorship for free. It's one of the factors that makes the DMCA ripe for abuse: rightsholders who don't mind ending up in the Takedown Hall of Shame can get embarrassing videos pulled out of the public conversation for two weeks. And for videos that are connected to news items, like the Limbaugh video or campaign ads, that temporary shutdown can mean the difference between a major impact and total obscurity.
If the 2008 election cycle is any indication, we’re likely to see just that kind of abuse over the next several months. For example, during that election season major news outlets – who depend on fair use, and should really know better – sent takedown notices for several political ads. The McCain-Palin campaign even sent a letter to YouTube [pdf], requesting that YouTube give special consideration to political candidates and campaigns.
Four years ago, YouTube correctly responded that favoring speech from political campaigns over that of other users is not the right approach. But they also declined to adopt any policy to limit DMCA abuse as a political weapon.
YouTube and other intermediaries (like Facebook) should take a second look at that position. UGC sites and social media have become essential tools for distributing speech, and not just by users who will be able to get special consideration. Presidential campaigns and popular blogs may be able to attract public attention and get a personal review, but the users behind videos like "Neda," which came to symbolize the Iranian "green revolution," or those documenting police brutality during Occupy protests, are not. Moreover, the Ninth Circuit UMG v. Veoh decision, along with the ongoing Viacom v. YouTube, has shown that courts support strong safe harbor protections for service providers. That means they can afford to resist censorship attempts without taking on much legal risk.
Defending your users against censorship is a good business practice — after all, DailyKos had to use a competitor to host the video while it was down from YouTube. It’s also good civic hygiene. The DMCA abusers still deserve a good shaming for their role, but YouTube and other UGC and social media sites can help users fight back. It's time that they did so, actively and consistently.