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.

(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government draws closer to introducing a new copyright law — a proposed update was expected before Christmas but was withdrawn at the last minute, after a vocal protest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.

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.

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.

In the United States, for example, various elements of the record industry have used the law to threaten consumers for using short snippets of music in their home videos. The industry’s lobby group, the Recording Industry Association of America or RIAA, also recently tried to argue that copying music from a compact disc on to a computer hard drive — something most people agree is “fair use,” is actually not permitted by the law.

One of the questions surrounding the Canadian bill was what would become of the Private Copying Levy, a fee that consumers pay when they buy music players, blank CDs and DVDs, which is then distributed to artists to compensate them for piracy. Rulings by the Copyright Board have suggested that this fee actually makes downloading copyrighted music legal in Canada.

Concerns about the future of that levy, as well as restrictions on copying content for creative purposes and the criminalization of any attempt to modify a device so as to allow copying — all features of the DMCA — was what sparked the Facebook and blog protests, Prof. Geist has said. And the suggestion that Canada might simply copy the U.S. law clearly hit a nerve. By the time the bill was pulled from the House, the Facebook group that Prof. Geist started had more than 10,000 members (Update: It now has more than 20,000), and others had also formed — including one that asked people to show up at the Industry Minister’s “open house” event last weekend in Calgary, where he was confronted by a small but vocal group of those opposed to the bill.

Will such incidents help Facebook and the blogosphere get some respect in Ottawa? That’s hard to say, but ignoring a medium that can generate more than 20,000 dissatisfied voters in a little over a week doesn’t seem like a great strategy, even for the government.

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.

The 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.

In an op-ed piece in the Washington Post, a lawyer for entertainment giant Viacom writes what amounts to a thumbnail summary of the company’s $1-billion lawsuit against YouTube for copyright infringement. In a nutshell, Michael Fricklas says that the case boils down to whether the video site — now part of the Google empire — is protected by the so-called “safe harbour” provisions of the U.S. Digital Millennium Copyright Act.

Obviously, Fricklas’s argument is that it is not. Why? Because, he says (and Cynthia Brumfield has more on his argument at IPDemocracy), YouTube knows that infringing material is uploaded to the site, it has both the ability and the duty to monitor and remove this content, and yet it not only leaves the content on the site but makes money from it — which is a no-no under the DMCA, and removes the protection of the “safe harbour” provisions. Ipso fatso, as the legal types (of which I am definitely not one) like to say when they have proven their case.

This may sound like a slam-dunk, and other observers — including billionaire Mark Cuban — certainly seem to think YouTube is on shaky ground when it comes to safe harbour protection. But others aren’t so sure. For example, Electronic Freedom Foundation lawyer Fred von Lohmann has said that simply making money from potentially infringing content is not a clear breach of the safe harbour, at least according to some lower-court rulings.

Some of what Fricklas seems upset about is the structure of the DMCA itself (which, it’s important to remember, was essentially created by content owners like Viacom). He says “Putting the burden on the owners of creative works would require every copyright owner, big and small, to patrol the Web continually on an ever-burgeoning number of sites.” And yet, that is the way the DMCA works: copyright owners notify a site and the site removes the content.

In other news, one of the chief architects of the DMCA thinks that it is flawed (primarily because of the focus on DRM, as Michael Geist noted in an email to me) and likely needs to be reworked.