This source linked is only McCain - Palin’s initial correspondence to YouTube.  YouTube’s response can be viewed here:
    This letter by the McCain campaign expresses former presidential candidate’s displeasure with YouTube over questionable infringement claims made by the national news media.  After the campaign created advertisements using well known video clips from national media sources and uploaded them to YouTube, news organizations like CBS sent YouTube DMCA takedown notices for hosting videos that they believed infringed on their copyright.  Central to their claim was the fact that they did not want their videos and personalities to be seen as endorsing one candidate or another.  YouTube promptly removed the videos, which drew the ire of the McCain campaign.  Even though YouTube was properly following DMCA protocol, McCain lamented that the process would take too long to be resolved (between 10 and 14 days), and asserted that YouTube should make a fair use judgment itself before removing the video.  McCain asked for special treatment, allowing for videos uploading by the official candidates’ campaigns to be looked at differently when receiving takedown notices.  In YouTube’s response, the video host declined these requests claiming that it was simply following the procedure laid out in the DMCA to protect its safe harbor status, and that they could not discriminate between uploaders.  A McCain representative asserted that the DMCA does not necessarily define with what specific speed a host must comply with a takedown notice, and responding automatically is not mandated.
    This situation provides one of the central examples I will use in my paper.  McCain’s difficulties with the intricacies of the DMCA provide a high profile example of how certain provisions can be abused.  It is particularly valuable because even though the correspondence is between the McCain campaign and YouTube, both organizations are effectively complaining about the takedown and notice process, albeit to different degrees.  Even as YouTube says it is simply following protocol, it criticizes those who abuse the takedown process.  Meanwhile, the McCain campaign reiterates the problems many see in the lack of timely recourse alleged infringers have in the process.

    In this article, Paul Alan Levy echoes the calls by some to combat abuse of the DMCA notice and takedown system by shaming those who make illegitimate claims and the others who needlessly comply, as well as take possible legal action against them.  Levy also argues that the better approach would be to reform the DMCA itself, especially since both the McCain and Obama had problems with the system, and both would be a position to change the law regardless of the election outcome.  He proposes 5 specific changes in the DMCA.  The first would be to allow ISPs and service providers to not effectively be required to immediately takedown allegedly infringing material, while still maintaining safe harbor status.  Secondly, he proposes making it easier for people who receive bogus takedown claims to receive compensation via statutory damages, presumably deterring copyright holders from filing false claims.  He also suggests notification by the service provider to the possible infringer before the content is removed, as well as requiring takedown notices to be submitted to a public database for viewing.  Finally, Levy argues for all intellectual property types to be protected, not just copyright.  His agenda is put forth at a time when both potential presidents, having felt the negative effects of the DMCA, may be more motivated to remedy it.
    This article is extremely beneficial in that it outlines a significant number of ways to amend the DMCA and resolve the current notice and takedown problem.  His position is not explicitly based in anger, aggravation, or retribution, and offers a clear list of ways to fix a broken system.  I will primarily use this article to offer constructive remedies to the problem I plan to expose.  Particularly, his suggestion to allow the service provider to notify the alleged infringer prior to the content being removed, while simultaneously not surrendering its safe harbor status, is a proposal not without flaws, but could possibly be an important part of the recommendations I make to fix the system.

    This order from the US District Court for Northern California rejects Universal Music Group’s request to dismiss the lawsuit against the music company by Stephanie Lenz.  Months after posting a clip of her son dancing to a Prince song to YouTube, Universal asked the video host to remove the clip, claiming she was infringing their copyright of the song “Let’s Go Crazy.”  Following the procedure under the DMCA, Lenz told YouTube that her video was legal, and it was restored – Universal did not pursue legal action against Lenz since her use was clearly fair.  However, in conjunction with the EFF, Lenz sued Universal for acting in bad faith, and asked for compensation covering her legal costs.  She alleged that Universal specifically did not “belie[ve] that [Lenz] actually infringed a copyright,” and that its takedown request was entirely improper.  This order covers the most recent development, with Judge Jeremy Fogel refusing to dismiss the lawsuit as Universal wanted, and declaring that copyright holders must take fair use into account before issuing DMCA takedown notices.  Universal had argued that it was not incumbent on copyright holders to consider a potential fair use defense, and that doing so would be costly and disruptive.  The Judge rejected this argument, and while admitting that he did not believe it to be likely that Lenz could eventually win the lawsuit against Universal, still allowed it to progress nonetheless.
    Fogel’s decision is going to play a big role in my paper, as this order sets precedent for other courts to look fair use at when determining takedown-abuse cases.  The decision is unique in that it helps define what a copyright holder must do to clear the “materially misrepresents” hurdle set in Section 512, adding consideration of fair use.  Previously, it could have been possible for copyright holders to more recklessly send takedown notices to service providers, and make a credible claim that they were not active in misrepresenting since a limited (and undefined) amount of care was given to the process.  With the addition of fair use, the burden is higher, which I will argue is beneficial to the takedown process.  Despite the judge’s assurances that adding a fair use component will not add a tremendous amount of complexity to the process, it will also be worth mentioning how many people disagree with this claim, believing that the four factor test for determining fair use is inherently nebulous and difficult to use.

In early 2007, Stephanie Lenz recorded a video of her children dancing to the song “Let’s Go Crazy” recorded by Prince. She uploaded the recording to Youtube and, roughly three months later, received a takedown notice from Youtube notifying her that the video infringed on a copyright held by Universal Music. Lenz issued a complaint stating that the video was actually a Fair Use of Prince’s music and should therefore be put back onto Youtube. She said her video was not taken down based “on a particular characteristic of the video or any good-faith belief that it actually infringed a copyright,” but rather Prince’s personal desire to control all of his work. The plaintiffs in this case accept that the video includes elements that are under copyright by Prince and Universal. Their argument is whether or not the Digital Millennium Copyright Act “requires a copyright owner to consider the fair use doctrine in formulating a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” The judge in this case noted that no other court case has actually determined the merits of whether the phrase quoted above pertains to Fair Use. The judge determined that, despite no previous ruling, Fair Use is not an infringement of copyright and is a lawful use of the copyright. The court thus ordered that a brief review of potentially infringing material must be completed by content owners prior to sending a Takedown notice, to ensure whether it is a Fair Use.

This decision strengthens my paper’s argument that many potentially infringing videos on Youtube may, in fact, be examples of Fair Use. While only a small percentage of songs available on file sharing websites could be constituted as Fair Use due to the skill required to sufficiently transform songs, many videos on Youtube may be shielded from unwarranted takedown notices because of this ruling, due to the fact that transforming and mashing video clips is much easier than transforming songs. The complaint that a large portion of Youtube’s videos are copyright infringing and that Youtube encourages such videos is thus proven false. In reality, many of these “infringing” videos actually make up the user-generated content that embodies the spirit of Youtube: a community of Web 2.0 users producing unique and individual content to share with others.  Had this decision not been made, unchecked takedown notices could have harmed time-sensitive and important videos that were actually examples of Fair Use. While Universal argued that this checking for Fair Use is an unnecessary waste of time, the Judge was quick to point out that the Copyright Act of 1976 established 4 simple, quick factors for determining Fair Use. This decision upholds the hard work of individuals who successfully transform copyrighted material, and it prevents large corporations and recording artists from overreaching their bounds by unfairly removing Fair Use videos. Youtube’s legitimacy as a website made up of a majority of unique material is thus upheld.

    Wired’s recent YouTube article, YouTube vs. Boob Tube, does a good job of summarizing the important bits of YouTube culture for those who may have missed it up until this point.  It begins as any good discussion of YouTube, by rattling off a large array of videos which are simply to be seen so that you can understand the fundamental concepts underlying YouTube

    It continues to assert more of YouTube’s grassroots, consumer-generated flair, slowly beginning to delve into broader sociological concepts (writer Bob Garfield decides to bestow upon YouTube the moniker “monkey vision,” which is a name so outrageously “pompous social magazine writer attempting to coin the next phrase” that it is sure to be forgotten soon.

    But beyond that, it does address some key issues with YouTube, such as its future.  How can, for instance, YouTube truly keep afloat when all it has is ad revenue and the majority of its hits go through embedded content, not directly off of the site where the ads are?

    Regardless, Hollywood types are shaking in their boots, and for good reason.  As YouTube takes off, not only do they lose their stranglehold on the media market—as the article points out just a few years ago completely dominated by Hollywood—they lose ad revenue, and to top it all off, many of the videos on YouTube actually infringe upon content that they are creating.

    The article, in general, seems to depict a two-pronged future for media.  It raises two important questions: can YouTube capitalize on its success, or will it turn out to be a “useless” humanitarian endeavor?  The second question is, literally and oddly enough, “will we ever be rid of Regis Philbin?”

    Regardless, the future of YouTube still looks promising.  We are still in the midst of a consumer culture-driven wave, and as the technology gets cheaper and cheaper, there is no sign of end.

    In Chapter 5 of Free Culture, Lawrence Lessig lays out anecdotes and archetypes of all manner of piracy.  The duplication of copyrighted CDs and DVDs in foreign markets is touched upon, but one of the main salient points is his defense of Peer-to-Peer file sharing networks, the groundbreaking networks and servers which made Section 512 absolutely necessary and the rulings on which still protect YouTube from harm.

    One of Lessig’s major talking points is his attribution of the four archetypal uses of P2P networking: stealing music, sampling music before buying, access to abandonware or other copyrighted content that is no longer available by traditional means, and those who search for content that has no copyright or a Creative Commons license and is meant to be shared.

    This is a highly utopian view of both P2P networking and the internet, but at the very least interesting to consider.  Lessig goes on to discuss drops in CD sales and later Jack Valenti’s ridiculous claims about VCRs as “tapeworms,” just waiting to drive the industry down.  If anything, the VCR and file-sharing networks both paved the way for the kind of content generation and also server networks that my final project will use and draw attention to.

    This section of US Copyright law outlines violations of copyright-managed systems, such as bypassing digital rights management and producing a copy of a video in another format.  This makes it illegal for consumers to bypass encryption that restricts content, for instance, to one device for purposes of moving the same content to another.  The law also includes information on the Librarian of Congress’ selection of a class of bypassable works, exemption for educational institutions, and what construes technological violation of copyright encryption.

    Section 1201 also states that no outstanding violations of this section will hinder a defendant’s fair use argument.

    This section of US Copyright law is particularly salient as in order to create my project, I will be bypassing both DVD encryption codes and any DRM embedded into the music used for the piece.

    These are both clear violations of Section 1201.  However, were my project ever to come under copyright scrutiny, I would hope to find protection under this violation being carried out within an academic institution, for purposes of parody, and creating a transformative video which falls neatly under fair use exemption.

    This is also important because for the vast majority of videos on YouTube that contain copyrighted content owned by major corporations, that content has been captured from a source which implemented digital rights management, and thus the uploaders have infringed upon Section 1201.

Stephen Speicher discusses YouTube's place in the fair use discussion, and how the debate over YouTube could help and answer the "age-old question: What is fair use?".  He first comments on YouTube's amazing rise to stardom, becoming the number one internet video service just a year after its conception.  Speicher explains that YouTube's success stems mostly from its ability to allow users to post videos and view them.  He also points out that while much of YouTube's traffic comes from views of homemade, legal, amateur content, a large bulk of the videos posted on the site are copyright infringers and, therefore, illegal. 

While many of these videos containing copyrighted content are direct copies and obviously illegal,  many of the videos show short news clips from cable television, sitcom or clips of sporting events and other public gatherings.  These "tightly-edited clips", argues Speicher, can be seen as reporting or educational, and therefore within the limits of fair use.  He uses the example of someone blogging about the officiating in the NBA playoffs, saying that while it would be possible to describe each play in detail and then give the thumbs up or down on the refs call, it would be much more practical just to show the clip of the play itself to illustrate your point.  He also mentions the fact that YouTube is positioning itself to be at the heart of this debate by "distancing themselves" from complete works (The ten minute limit on clips is a good example of this).

This fair use argument, while it isn't YouTube's major defense mechanism (that would be the Safe Harbor provision in the DMCA), can help bolster the case for YouTube as a legitimate company.  If YouTube can convince the courts that these clips are fair use, it would eliminate a significant portion of the clips now considered illegal on the site.  With more legal videos, YouTube can make the Sony argument, saying that their company has substantial non-infringing uses.  This precedent has been in place for twenty years and would put YouTube on very solid legal ground.

Riddle me this: what do you get when you combine a nifty little piece of Flash software, some backend mojo, an army of cellphone-toting teens, and one "Lazy Sunday" clip? The answer is, of course, the largest online video streaming service on the planet, YouTube.

...

Ironically enough, however, it's YouTube's philosophy of small, digestible content and their willingness to avoid copyright issues that has positioned them to answer the age-old question of “What is fair use?”