Poor John McCain. To his morning-of-November-5 regrets, add a footnote to his non-Mavericky contribution to the Senate's unanimous passage of the DMCA. Ten years later, he awoke to find the major networks vanishing his campaign videos containing brief, non-infringing excerpts of their broadcasts from Youtube. His General Counsel was left with no choice but to publish an eloquent beg. Zahavah Levine's response to Trevor Potter speaks for us all: "We hope that as a content uploader [surprise! hats come full circle,] you have gained a sense of the challenges we face everyday ... We look forward to working with Senator ... McCain on ways to combat abuse of the DMCA takedown process."

Of course, Mr. Potter could only have found himself in this position because the news networks had declined to indulge the letters he had sent them first. We have no record of these letters, because he declined to publish them, but his begging was probably equally eloquent. In them, the campaign would have emphasized that there was neither an infringement of copyright nor a copyright that it could have infringed. To quote Mr. Potter's YouTube letter, the videos at issue were "paradigmatic examples of fair use, in which all four of the statutory factors are strongly in our favor: 1) the uses are non-commercial and transformative; 2) they are factual, not fictional; 3) they are extremely brief; and 4) they have no conceivable effect on the market for the allegedly infringed works. See 17 U.S.C. [Section] 107(1)-(4)."

No matter. Nothing in the DMCA bars a network from yanking fair uses of its content, whether that's a clip of a debate or a baby dancing to "Let's Go Crazy". It only protects against take-down notices issued in demonstrably "subjective bad faith." (Lenz v. Universal.) Mr. McCain's campaign videos may be demonstrably fair use, but not everyone who disagrees with that conclusion can be proven to have done so in "subjective bad faith." And if anyone knows how to keep clear of that category, surely the lawyers at Fox News do.

Second, Mr. Potter would have reminded the networks that they were issuing takedown notices to YouTube without any credible threat of a lawsuit. As he notes in his letter to YouTube, the networks do not routinely register their live news broadcasts with the Copyright Office, and cannot obtain registration certificates within 10 days. Without such certificates in hand, they cannot file infringement actions. See 17 U.S.C. Section 411(a) ("[N]o action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made ..."); see also Xoom, Inc. v. Imageline, Inc. 323 F.3d 279, 283 (4th Cir. 2003) ("Copyright registration is a jurisdictional prerequisite to bringing an action for infringement under the Copyright Act.")

Again no matter. Copyright claimants are not throwing legal weight at intermediaries like YouTube. It is economic weight. The networks know that YouTube knows that "the scale of YouTube's operations," and the "complex and fact-specific" nature of the legal test for fair use, makes it impossible for today's Internet intermediaries to review any meaningful fraction of the material they host. Of course, Mr. Potter can beg the networks, as he begged YouTube, to make an exception for "the most fundamental First Amendment activities" -- "[d]iscussion of public issues and debate on the qualifications of candidates" -- which are "integral to the operation of the system of government established by our Constitution." Keep Thomson Governor Committee v. Citizens for Gallen Committee. But he can only invoke the First Amendment as a value, not as controlling law. The networks, in their war by any means against Internet intermediaries like YouTube, are motivated by a higher value than that.

Mr. Potter's YouTube letter proceeded from a position of even deeper weakness, as highlighted by Ms. Levine's advice that he take his complaint to the networks because "[y]ou are operating from the position of strength." First Amendment values are again the only weapon in his arsenal. He wields it well, identifying these values with YouTube's business model: he proposes that the legal work he requests is justified by "the protection of core political speech, and the protection of the central role YouTube has come to play in the country's political discourse."

Surely, his appeal to First Amendment values meets a more enthusiastic audience in YouTube. But, framed as a paean to "political discourse," it must run against YouTube's even more deeply held value of opening that discourse to underdogs. "We try to be careful ... to treat all of our users fairly, regardless of whether they are an individual, a large corporation or a candidate for public office," Ms. Levine responds. Indeed, Mr. Potter can only claim to be suggesting a "small amount of additional legal work" because he asks YouTube to favor "accounts controlled by (at least) political candidates and campaigns." Does that include non-profits? How about college students, housewives, Vietnam vets, racist skinheads? Then it is no longer a small investment. Mr. Potter should have expected YouTube to be hostile to a suggestion to further widen the gap between sanctioned and grassroots political discourse, or to favor products of America's established political parties over (in Ms. Levine's words) "a lot of other content on our global site that users around the world find to be equally important, including, by way of example only, political campaigns from around the globe at all levels of government, human rights movements, and other important voices." Nor can Mr. Potter's letter neglect to mention that YouTube must satisfy its raw self-interest first. "YouTube has nothing to fear" only tends to highlight that YouTube has everything to fear in its power-play against jealous incumbent content owners. Ms. Levine reminds him that YouTube will proceed into the copyright morass only so far as "a measure of business certainty" will permit.

Those of us, including Mr. Potter, who wish to augment the "groundbreaking contributions" made to political discourse by contributions to Internet intermediaries must direct our efforts to augmenting this "measure of business certainty." Those of us, not including Mr. Potter, who wish to equally accommodate major campaigns and grassroots contributors should direct our efforts further upstream, away from the diverse body of users who post this content, to the owners with a singular interest in controlling it. At the very least, the fair use doctrine needs to be made more certain. Or, recipients of takedown notices should retain their safe harbor protections even if they refuse to take down content, if they have a reasonable belief that the content is being used in accordance with fair use. Writing obsequious letters is hardly going to work.

Ironically, "business certainty" is already dictating the winner of this contest, with or without a change in the law. The "scale problem" that YouTube faces in assessing fair use is no less daunting to the networks who hope to police their content in "good faith". These jealous networks targeted the campaigns because they were high-profile, low hanging fruit. The vast balance of infringements that slipped through their fingers were products of the non-profits, as well as the college students, housewives, Vietnam vets, and racist skinheads. YouTube, and its millions of users, don't need more law on their side. Scale is winning.

-- AndrewGradman - 18 Dec 2008

• I like this very much. I know only too well some of the consequences of being too arch, but you keep the tone under very good control, in my view. The analysis, which as you say should be good enough but not too good given our long-term interests, satisfies that condition.