President or Pirate? The DMCA Takedown War of the Presidential Campaigns

In what has been described by some as over-zealous enforcement of copyright, BMG (the large German publisher) forced YouTube to take down a Mitt Romney campaign video because it included footage of President Obama singing Al Green’s “Let’s Stay Together.”

The Romney video followed the Obama campaign’s release of a political ad featuring Mitt Romney’s off-key rendition of “America the Beautiful" as underscored to images of off-shore employment out-sourcing. Romney’s campaign used the Al Green song to attack Obama for his relationship with lobbyists and campaign fundraisers. YouTube pulled down the Romney ad after BMG, the music publisher that owns the copyright in the “Let’s Stay Together” composition, filed a copyright takedown notice under the Digital Millennium Copyright Act (DMCA). Not wanting to look like it was playing politics and only targeting the Romney ads, BMG also sent notices to YouTube to take down the original news footage clips of Obama singing the song.[1] The Obama campaign met no similar copyright opposition to its attack ad because the copyright to “America the Beautiful,” first released in 1910, has expired and that musical composition is now in the public domain.

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2nd Circuit’s Safe Harbor Ruling Influences 9th Circuit to Reconsider: What’s an ISP to do?

Many Internet Service Providers (ISP) assume that take-down requirements with respect to copyright claims are fairly standard and that they can readily avoid copyright liability for posts by users by following some simple rules. The activity in the Courts on the Circuit Courts on this issue shows otherwise.

Please read what I've written about this here

Viacom v. YouTube Brings About a Sea of Change in the Safe Harbor

Over the past decade, websites and Internet Service Providers (ISPs) have learned to rely on the takedown procedures of the Digital Millennium Copyright Act (DMCA) in order to generally avoid copyright infringement liability imposed by content owners. 

ISPs have been able to shield themselves from all liability form their users posting infringing material by having a proper takedown system in place. But, a recent Second Circuit case undermines that level of confidence in takedown procedures. The Second Circuit Court of Appeals is the first U.S. court to decide that ISPs may still be liable for copyright infringement even after complying with the takedown provisions of the DMCA.  

As a result, the underlying questions remain: should intermediaries be held liable for their users infringing actions? If so, then to what extent?  Where does the law now draw the line? How can a website owner or ISP best protect itself when posting content provided by others?

I write more about this here