McCain and the DMCA: Extreme irony alert

It’s almost too good (or bad) to be believed: John McCain, the U.S. presidential candidate who as a senator supported the draconian rules included in Digital Millennium Copyright Act, now finds himself begging YouTube to stop removing his campaign’s video clips. YouTube has been taking them down because they contain excerpts from news broadcasts, and broadcasters are claiming that is copyright infringement. The McCain campaign is put in the uncomfortable position of arguing that those excerpts are “fair use,” and that YouTube should knock it off.

YouTube has responded to the McCain campaign (while stifling a chuckle, perhaps?) that it can’t play favourites just because the senator is in the midst of an election campaign, and that while Mr. McCain no doubt thinks his clips are of extra importance, “there is a lot of other content on our global site that our users around the world find to be equally important.” Then comes the real zinger: YouTube’s general counsel Zahavah Levine says that: “We hope that as a content uploader, you have gained a sense of some of the challenges we face everyday in operating YouTube.” Bam.

Artists’ coalition wants you to pay up

(cross-posted from my Globe and Mail blog)

As the federal government draws closer to introducing a new copyright law — a proposed update was expected before Christmas but was withdrawn at the last minute, after a vocal protest> involving a Facebook group set up by University of Ottawa law professor and fair copyright advocate Michael Geist, as well as other activity — various groups are jockeying for position.

The latest entry is a formal “platform” statement from the Creators Copyright Coalition, an alliance of 19 professional associations representing writers, musicians, actors and other performers whose work appears in print, on stage, on TV and radio, in movies and in galleries. The document isn’t online at the CCC website (at least as far as I can tell), but there is a copy of the platform here.

From the looks of the copyright coalition’s platform, its vision of the future is one in which everyone pays more in fees, and Internet providers are liable for any copyright infringement that is transmitted over their networks. Among other things (including a request that schools pay a fee to put on plays, something they are currently entitled to do for free), the coalition wants artists to have the explicit right to forbid — or to charge money for — the transfer of their work to another medium.

The CCC’s platform also wants the private copying levy, which adds a charge to the purchase of every blank CD in order to reimburse artists for illegal copying, expanded to include not just music but visual art, video, written content and other forms of art. The coalition recommends that “new tariffs be levied for the new categories.”

Finally, the group says that it would be “only fair” to require Internet service providers or ISPs to “assume the responsibilities” of ensuring that content on their networks doesn’t infringe copyright. The CCC recommends that Canada adopt a notice-and-takedown process similar to that used by the U.S. Digital Millennium Copyright Act, making the ISPs liable for infringement.

Note: The federal Privacy Commissioner has some concerns about the copyright legislation as well — in particular, the fact that some digital-rights management or DRM tools used by content companies can record information about people’s behaviour, in breach of privacy protections, as well as the fact that a “notice and notice” process being contemplated as part of the law for ISPs would require those ISPs to retain information about their users, in contravention of privacy laws.

Canadian DMCA delayed, for now

According to from Michael Geist — who Cory Doctorow at BoingBoing loves to call “the copyfightin’ prof” — a proposed update to Canada’s copyright law that he and many others fear could be a carbon copy of the DMCA won’t be introduced until next year. In another post, Michael notes that the Facebook group he set up that is dedicated to voicing concerns about the copyright bill has now passed 20,000 members.

Below, I’ve posted a piece I wrote for the Globe that was published in the paper on Thursday, about the role that Facebook and blogs have played in the opposition to the proposed bill (which may have convinced the government to delay passage of the legislation). I also wrote a blog post recently on the same topic at my Globe blog.

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The federal government doesn’t seem to have too much time for what some call — Facebook, MySpace, blogs and so on. Access to many such sites is restricted in many government offices, presumably because they are seen as time-wasting devices for the office slacker. Will Ottawa’s view of such tools change now that they appear to have helped derail the proposed revisions to Canada’s copyright laws? It might, although it’s difficult to say how. The feds may begin to see these sites as deserving closer attention, or they may just dislike them even more now.

Although the government isn’t saying why the proposed copyright legislation didn’t show up for a vote in the House this week — as it was widely expected to — it seems more than a little coincidental that a storm of negative publicity reached its peak just before Industry Minister Jim Prentice pulled the bill. That storm came from many different areas, but all of them were powered to some extent by “social media.”

University of Ottawa law professor and copyright expert Michael Geist got the ball rolling with a number of blog posts on the topic, as well as a video that he uploaded to YouTube that described how people could voice their opposition to the bill. That in turn led to the formation of a Facebook group.

Many of those opposed to the legislation, including Prof. Geist and Canadian copyright lawyer Howard Knopf, believe the amendments would have turned the Canadian Copyright Act into a virtual copy of the U.S. law, the Digital Millennium Copyright Act (PDF). Although the DMCA has been hailed by content providers as a valuable tool for preventing piracy, critics argue it has also been used to dismantle much of what consumers have come to see as “fair use,” a principle that is enshrined in the common law of many countries, including Canada, and allows copyright infringement to occur for artistic or creative purposes.

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Never pick a fight with someone…

The AACS — the group of companies behind the encryption standard used in HD-DVD discs, whose encryption key was posted to Digg by about 10,000 people in the course of a day last week, which I wrote about here — just doesn’t seem to know when to quit. Despite the fact that its attempt to get BoingBoing and Google and Digg to remove the key string blew up in its face, the AACS now says it will continue its near-sighted campaign.

snipshot_e4qun407gkf.jpgThe lesson the AACS seems unwilling to learn is sometimes referred to as the Streisand Effect, in reference to the aging chanteuse who didn’t want photos of her home published, and only encouraged even more people to publish them. Is what happened with Digg petty? Perhaps. A lame attempt at civil disobedience? Maybe. An example of mob rule? Quite likely. But the AACS is still going to gain exactly nothing by trying to pursue its absurd strategy.

As someone once said (no one is quite sure who, but probably Mark Twain): “Never pick a fight with someone who buys ink by the barrel.” At the time it was said, it could only have referred to picking a fight with a newspaper publisher or journalist, since they were the only ones with the ability to publish whatever they wanted. Now anyone with a grudge, or an ax to grind, or a hobbyhorse to ride can be a publisher.

On a related note, Jason Calacanis talked to Digg CEO Jay Adelson and the EFF’s Fred von Lohmann on his podcast the other day, and it made for some interesting listening. Among other things, Jay said that at the peak of the submission frenzy, Digg was getting two submissions of the key every second, which meant that Digg was “essentially rendered inoperative.” The discussion over what to do about it, he said, “was an all-day thing.”

Adelson also said that Digg “is a living and breathing, user-controlled environment,” and that he “couldn’t hire enough people to moderate digg, it just wouldn’t be possible.” Digg tried to remove all the submissions — including some that posted the binary version, and some that posted links to a YouTube video in which someone sang a song containing the key.

But the bottom line for the AACS, as Fred von Lohmann said, is that “if they wanted to keep the key secret they did precisely the wrong thing.” And seem determined to continue doing it.

The WSJ is a bit muddled on copyright

Having written a few editorials, I know that it is a difficult art. The best editorials have a strong point of view — a way of gracefully cutting to the point of an issue — but enough nuance to make it clear the writer knows what he or she is talking about. The worst are all bombast, displaying an ignorance of the facts that undercuts the editorial’s argument. Unfortunately, it seems as though a recent editorial about Google in the Wall Street Journal fell towards the latter end of the spectrum.

The point of the editorial (which is behind a pay wall) is stated up high:

The firm’s practice of downloading and reproducing books, articles, photographs and other creative materials without approval of the copyright owners is legally ambiguous… Google pits the rights of intellectual property owners against the Web’s ability to “democratize” information for everyone.

There’s nothing wrong with that point — what Google is doing is legally ambiguous, and there is an inherent tension there between Google wanting to index information and content owners wanting it not to.

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So far, so good. But then a little further on, things get confused, as Tim Lee at the Technology Liberation Front describes it. The WSJ editorial writer cites a paper that Tim wrote for the free-enterprise Cato Institute, but mostly gets it wrong. It says his paper argues that “transformative” technologies like search engines should be exempt from many copyright lawsuits — but as Tim points out, all he was doing in his paper was summarizing what the U.S. courts have said.

He also notes that the editorial says Google “claims “a legal safe harbor” from copyright infringement under the 1998 Digital Millennium Copyright Act, which allows Internet firms to provide a thumbnail of copyrighted material.” But while there is a “safe harbor” clause in the DMCA (which leads to the so-called “notice and takedown” rule), it has nothing to do with thumbnails.

Then the WSJ talks about how Google is claiming

A right to reproduce and distribute intellectual property without permission as long as it promptly stops the trespass if the copyright owner objects. That’s like saying you have a legal right to hop over your neighbor’s fence and swim in their pool — unless they complain.

The first problem is that Google isn’t asserting any such thing; the DMCA explicitly confers that right. It also isn’t anything like climbing over a neighbour’s fence, since that has to do with property rights and not copyright, and they are very different (for what should be obvious reasons).

So an editorial that has a good point gets all confused in the middle, loses track of the facts, and then employs a dubious metaphor. I would give it a B minus, or possibly even a C, given how important the topic is. Mike Masnick over at Techdirt is similarly unimpressed.