McCain has accused YouTube of complying with copyright infringement notices about the news clips used in his advertising campaigns. McCain claims YouTube is blindly pulling down his videos for which it receives copyright violation notices without first performing a fair use analysis to review the legal merit of each notice.
As YouTube responded, this is logistically impossible because the evaluation of the fair use doctrine is complex and unpredictable, and each notice would need to be analyzed by a skilled attorney. Even then, because of the subjective nature of the doctrine, no attorney could guarantee with a high level of certainty that the outcome would fall in favor of fair use.
The fair use doctrine consists of four subjective factors to be weighed at the discretion of a judge:
- The purpose and character of the use
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use on the potential market for or the value of the copyrighted work
McCain claims his campaign videos are fair use because they are noncommercial, factual, brief, and do not affect the market for the allegedly infringing material. While this could possibly be one outcome, YouTube’s potential $1 billion check to Viacom for copyright infringement motivates YouTube to play it safe.
For YouTube, its response to the infringement notices was a simple business decision. The Digital Millennium Copyright Act provides a safe harbor for companies like YouTube if they take down the potentially infringing material.
Why would they risk another lawsuit?