A minor firestorm has hit the techblogosphere over the past several days regarding the removal of a Mitt Romney campaign ad on YouTube that contained a short clip of President Obama singing Al Green’s “Let’s Stay Together” (while at a campaign stop at the Apollo Theater in Harlem).  Commentators used this as an occasion to blast an aspect of DMCA 512, the U.S. law that provides for “notice and takedown.”  The knee-jerk reactions to this incident have been wrong-headed and a little bit depressing.

The law says that if a copyright owner sends a proper notice to a site operator (in this case Google for YouTube) about an unauthorized content item, then the operator may take the  item down to avoid liability.  The law enables the operator to provide counternotice but stipulates that the operator must wait 10 days after issuing the counternotice for a reply period before it can repost the item without risk of liability.

Sites like Public Knowledge and Ars Technica have focused on the fact that the five-second clip in the Romney ad is highly likely to be fair use, how dare BMG Music Publishing do this, etc., etc.  Public Knowledge also complained that the counternotice period forced the political ad off the air for too long a time and thus constituted abuse of copyright.

There’s no question that the clip makes a fair use of the song snippet; the “fair use analyses” done by people like Public Knowledge’s Sherwin Siy are beside the point.  More importantly, it’s wrong to blame the “evil music company” for instigating the takedown.

Here’s a much more likely explanation of what happened: The Obama campaign contacted the copyright owner and asked them to issue the takedown notice, as a tactical response to Romney’s attack ad.  BMGMP issued the notice as a routine clerical matter, as it does all the time at the request of songwriters or their management.  The notice triggered YouTube’s automated system, which took the clip down.

Mike Masnick at TechDirt — the only one here who appears to have done some actual investigation instead of mere grandstanding — noticed that other YouTube clips of Obama singing the song remained up for a while until they were taken down as well.  He also found that other singers’ versions of the 1972 classic hit remained up.  Masnick attributed this to overzealous lawyers at BMGMP  “doubl[ing] down” on takedowns for the sake of consistency.

Uh,no.  The truth, once again, most likely lies in campaign tactics.  The Romney campaign (or allied interests) probably tried to re-post the ad several times with different titles or metadata.  The Obama camp then responded by asking BMGMP to use YouTube’s automated Content ID scheme (based on fingerprinting), which would find all instances of the singing president and get them taken down as well. And once again, BMGMP would have handled this as a routine request.  This was the only way that the Obamians could have ensured that the attack ad would not reappear.

It’s also worth pointing out here that the DMCA 512 does not obligate anyone to take content down; it only enables someone to avoid liability by doing so. YouTube automates 512 takedowns to minimize risk of liability and do so as efficiently as possible.

In other words, YouTube also responded to this situation in a routine fashion.  I would venture to guess that if a lawyer at YouTube actually looked at BMGMP’s takedown notice, he or she would have left the clip up, secure in the knowledge that no one would bother to file an actual copyright lawsuit against it.  (Similarly, I’m convinced that no one with a legal brain at BMGMP looked at this initially either.)

In other words, if anyone is liable for abuse of copyright — which is itself actionable — it’s the Obama campaign, which simply used routine mechanisms at both BMGMP and YouTube to accomplish its aims.  (Disclosure: I plan to vote for Obama in November.)  Otherwise, the errors were of omission, not commission; no actual human beings at BMGMP or YouTube appear to have thought or cared about, let alone considered the  fair use implications of, this incident.

Meanwhile, clips of Obama’s Apollo Theater performance have been restored to YouTube.  Yes, it took time, but that’s what you get when humans have to decide questions of Fair Use.

P.S. Romney’s ad has always been available elsewhere, just not on YouTube.