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State Judge Apparently Demands That YouTube Take Down a Video of His Campaign Speech:

Doug Clark of the Greensboro News-Record reports:

Douglas McCullough is a judge on the N.C. Court of Appeals and an announced candidate for re-election in 2008. He's a Republican, as he makes clear when speaking to Republican audiences.

One such occasion was Oct. 20 at Lake Junaluska in Haywood County. A video at McCullough's campaign Web site captures his remarks.

He describes himself and two other candidates -- Supreme Court Justice Bob Edmunds and Court of Appeals Judge John Tyson, also Republicans -- as EMT, a team needed to rescue the judiciary.

No problem with that.

Then he says Edmunds' re-election is especially important because of legislative redistricting, recounting how Democratic gerrymandering has kept Republicans in the minority in the state House of Representatives. After the next redistricting in 2011, a challenge is sure to go to the Supreme Court, McCullough says, strongly implying that Republicans will get a better deal if Edmunds is on the bench....

Clark argues the statements were improper; but it's hard to tell exactly what the judge said, because the video has been taken down from the Web site, and the judge has also apparently demanded that YouTube take down a copy that was posted there. The YouTube page pointed to by Clark reports, "This video is no longer available due to a copyright claim by a third party"; my guess is that the claim was filed by the judge or someone working with the judge (for instance, the videographer used by the Republican group to which the judge was speaking, who likely would not assert his own copyright if it the judge hadn't asked for it).

This takedown strikes me as quite troublesome: The posting of the video seems very likely to be fair use, because it was for purposes of news reporting and political commentary, and because it was highly unlikely to at all affect the market for the video (since the market likely didn't exist). More broadly, the judge is hiding important information from the public, information that he shouldn't be trying to conceal even if copyright law allowed such concealment. If anyone has a copy of the video and can point me to it, or e-mail it to me, I'd love to see it, and post it if it strikes me as newsworthy.

Thanks to my fellow lawprof Michael Kent Curtis for pointing out this story.

TSW:
It's a symptom of the underlying problem with electing judges.
11.28.2007 2:33pm
Dave N (mail):
I am not rising to the defense of the judge because the comments certainly seem inappropriate--and I agree the posting of his statement on YouTube certainly appears to be fair use.

That said, it appears that Judge McCullough is running for re-election to the North Carolina Court of Appeals. I would be more disturbed if the comment had come from Justice Edmunds. However, Justice Edmunds should have immediately repudiated the statement and I find it very troubling that he apparently has not.
11.28.2007 3:01pm
Anderson (mail):
Wotta maroon. If the paper had run a transcript of his speech, would he be justified in demanding that the offending copies be pulled from circulation? Obviously not. Nothing magical happens when the speech is transcribed via videotape.

The scary thing about these maroons isn't their maroonery - nothing new there - but that they get the rest of us to go along with it.
11.28.2007 3:33pm
tarheel:
For what it's worth, Edmunds has distanced himself from the comments.

Let's just say that the NC Court of Appeals is not widely acclaimed for its understanding of, and respect for, the First Amendment (or, it appears, copyright law).
11.28.2007 3:46pm
bittern (mail):
Tarheel, Edmunds "distanced himself" by saying they weren't his words, but I don't see that Edmunds disputed or rebuked McCullough.

Edmunds, in a telephone interview Friday, said that he is an "impartial judge who doesn't prejudge cases" and that McCullough was not part of his campaign.

There was a conversation between the two judges about the comments, but Edmunds declined to provide details.

McCullough "told me that the comments were picked up, and he wanted to give me heads up," Edmunds said. "They were not comments I made myself."


Do you think that's adequate?
11.28.2007 4:02pm
tarheel:
Fair point. My standards may be too low. I just assumed that was about as much as you were going to get him to say. I think a rebuke was just not in the cards.
11.28.2007 4:17pm
bittern (mail):
No worries, tarheel. I suppose I have a running complaint with all the fake apologies out there all the time. Nobody believes in groveling remorse and abject penitence any more.

EV, I s'pose we all agree the attempted you-tube takedown is troubling.
11.28.2007 7:27pm
Joe Veenstra (mail):
The video I believe you are referencing is available on Google video:

McCullough video
11.28.2007 8:58pm
Duffy Pratt (mail):
I agree that its a little troubling, but you can hardly fault YouTube for being overly cautious. It's not like they have any duty to stand by posts that may violate copyrights.
11.28.2007 9:11pm
Visitor Again:
I agree that its a little troubling, but you can hardly fault YouTube for being overly cautious. It's not like they have any duty to stand by posts that may violate copyrights.

Perhaps not, but if YouTube wants credibility with those who post or look at videos on its site, it won't yield every time someone who has been caught on tape making revealing comments tries to undo the damage by demanding the evidence be removed from public view.
11.28.2007 9:27pm
Ben P (mail):

Perhaps not, but if YouTube wants credibility with those who post or look at videos on its site, it won't yield every time someone who has been caught on tape making revealing comments tries to undo the damage by demanding the evidence be removed from public view.


I'm not so sure that's a danger.

I think YouTube's more afraid of the legal penalties than they are of losing viewers. Fact is, they're the biggest online video site in town, and they already do mass takedowns at the request of media companies in an attempt to avoid copyright litigation.

Given the uncertainty of fair use suits (although I fail to see how a court could find otherwise here) that may be a wise decision, although it does deprive them of a lot of potentially usable content.
11.28.2007 9:46pm
Lior:
IANAL, but my impression is that youtube is pretty much compelled to remove videos upon request, since that puts them in the DMCA safe habor. The only way for them not to remove a video is for them to non-trivial legal research and confirm that the particular video is illegal. No way that's going to be profitable.


That said, a DMCA takedown notice is supposed to include a sworn statement that the removal is warranted. This feature was supposed to protect the public against unfounded threats, but seems to have completely failed -- does anyone know of a single case where someone who served a false takedown notice was prosecuted for prejury?
11.29.2007 1:23am
Avatar (mail):
Also not a lawyer, but spent plenty of time poring over the DMCA. (I've filed those notices on behalf of an employer.)

There's a provision that allows for the user responsible for putting up the alleged-infringing material to file a statement with the ISP to the effect that he believes that the material is non-infringing, at which point the ISP no longer risks losing its safe-harbor privilege by putting the material back up. They're not compelled to do so, however. Original complaining party can take it to federal court at that point or go home.
11.29.2007 2:52am
Hewart:
It's a long-standing tradition with candidates for any office to dissemble and/or pander to a particular audience on the campaign trail in such a way that they would not wish a larger audience, or another subset of their putative constituency, to hear.

When a politician speaks out of both sides of his mouth or is two-faced depending on his audience, or worse, implies he will engage in or permit unethical behavior to benefit his constituency, it can do nothing but good for it to be brought to light. We have, thankfully, come to the point in our history when these speeches to select groups of constituents can be videotaped and distributed easily.

In this specific case, it is more troubling to me that a judge would be implying, or allowing to be implied, that he will use his elected position to promote partisan aggrandizement in redistricting. That he or his agent then intimidating YouTube to remove evidence of this unethical implication is just icing on the cake.
11.29.2007 7:40am
bittern (mail):
Mmm. Icing!!
11.30.2007 10:11am