CDT: Meritless take-down notices could hurt online free speech

A new report released Wednesday from the Center for Democracy and Technology argues that "meritless" calls to take down online campaign ads because they allegedly infringe copyrights are stifling online free speech.

CDT examined a dozen cases in which YouTube and other online sites were sent notices demanding that online videos be taken down because they allegedly infringed the senders' copyrighted material. CDT claimed in its report that all 12 cases it examined involved short clips of copyrighted works that are covered under the U.S. doctrine of fair use and therefore should not have been removed.

The 1998 Digital Millennium Copyright Act provides protection from liability for Internet service providers, online sites and other intermediaries who take down infringing material when notified of its existence on their networks or Web sites.

"We actually think the DMCA notice and take-down process ... is a good and balanced approach," CDT Senior Policy Counsel David Sohn said during a conference call with reporters. "The problem is that the process is being abused."

Given the growing importance of online ads in modern campaigns, meritless requests for take-downs under the DMCA sent to sites like YouTube threaten online political speech, Sohn said.

"Advocacy organizations and individual candidates increasingly rely on [user-generated content] platforms to communicate more directly with voters. In addition, such sites have given individuals powerful new platforms for expressing their opinions and participating in the political process," according to the report. "Therefore, if spurious DMCA takedowns targeting such online advocacy are widespread, the impact on political speech - highly protected under the First Amendment - could be significant."

CDT noted that its report was prompted by an incident from the 2008 presidential campaign when Republican presidential nominee John McCain's campaign complained in a letter to YouTube about several incidents when online videos posted by the campaign on the site had been taken down after YouTube was sent take-down notices under the DMCA from parties claiming infringement. In the letter, the McCain campaign argued that such take downs were unjustified because the material at issue was covered under fair use.

The allegedly meritless take-down notices CDT identified involved a number of news organizations including Christian Broadcasting Network, Fox News, MSNBC and National Public Radio, CDT said.

CDT said the cases it examined were not motivated by copyright concerns but often related to issues not covered by the DMCA such as "concerns over reputation and false endorsement." CDT also argued that given the widespread use of what it deems as meritless take-down notices, safeguards included in the DMCA to challenge such notices "have not been effective," particularly when they involve ads from campaigns that may not have the time or resources to challenge take-down notices.

YouTube did not immediately respond to a request for comment on the report.