The latest casualty of unjustified DMCA takedowns on YouTube appears to be the recent viral video hit “The Day ObamaCare Died,” which hit the web in October 2009 and was especially popular soon after Scott Brown’s stunning victory in Massachusetts last month. The video was originally created by YouTube user HerBunk, and featured a parody of the song “American Pie” (originally by Don McLean) sung by Obama sound-alike Paul Shanklin. The animated video was an instant online sensation, especially among conservative and Republican bloggers, for its humorous portrayal of President Obama lamenting the defeat of his monstrous health-care bill. Now that video is no more.
HerBunk posted the following video statement on YouTube on January 25:
I made “The Day ObamaCare Died” and I uploaded it in October 2009. I put in about 30 hours of work in making the video. My copyright for the use of the song was challenged almost immediately by Universal Music Group (WMG). I beat that challenge because I had received Paul Shanklin’s permission for the use of his song. UMG owns the rights to the Don Mclean song “American Pie” also known as “The Day the Music Died” and persisted in their objections to my video on YouTube. In Dec 2009, when it had almost 700,000 hits, YouTube folded and told me that despite the fact that I wasn’t infringing on UMG’s copyright they had a contractual agreement with UMG and told me to remove the video or they would close my account permanently for failing to comply with YouTube’s “terms of service.” I removed the video. Even though ObamaCare may really be dead, I apologize for not being able to sustain the protest against it.
When I commented on this posting asking if he had filed a DMCA counter-notice, he replied:
If this is the case, this is a sad state of affairs indeed. If his statement is accurate, it seems both YouTube and Universal acknowledge that Universal has no copyright claim against the video. This is certainly true as this video is a prime example of precisely the type of speech the Fair Use Doctrine of U.S. copyright law was designed to protect–a politically motivated parody that is transformative and non-commercial in nature and in no way competes with the market for the original song, yet because of its controversial subject matter it would be highly unlikely to ever secure the copyright holder’s authorization.
What’s troubling here is that Universal and YouTube appear to know that, yet Universal insisted on censoring the video anyway, and YouTube was forced to play along because it doesn’t want to alienate Universal. While YouTube does have a contract with Universal allowing UMG’s songs to be used in YouTube videos, I highly doubt that contract requires them to censor any video Universal doesn’t like even where Universal has no legitimate copyright claim against it. This is a simple case of two large companies teaming up to abuse copyright law in censoring legitimate political speech.
Anyone who values the right to free speech that we enjoy in this country should be outraged by this move, and personally I hope that the Electronic Frontier Foundation may take notice of this incident and file a lawsuit to stop this outrageous behavior.
In the meantime, I found a copy of the video on another video site and have re-uploaded it to YouTube under my own account. Maybe I will have better luck keeping it online than the original creator. You can view the video below. Please pass the word about this video and let Universal and YouTube know that they cannot get away with abusing copyright law to censor non-infringing political speech.