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Yesterday we blogged about the request by the McCain-Palin campaign that YouTube respond to takedown notices less automatically. YouTube has responded in the negative, stating (as I did) that the problem is the law, not YouTube’s manner of dealing with the opposing parties. Here is YouTube’s response; I find it pretty reasonable. The Electronic Frontier Foundation wishes YouTube would show a bit more willingness to ignore obviously spurious takedown notices, e.g. ones where the contested material is a few seconds of a news show.

An interesting question is whether political campaign ads should get some special treatment. McCain’s campaign argues that because of the time sensitivity of campaigns and the importance of the free flow of information to the electorate, there should be a higher standard for taking down a campaign ad. YouTube doesn’t agree. Neither does Chris Soghoian in a well-argued, passionate post: Stand in line, he tells McCain, along with all the other people who are being abused by inappropriate DMCA takedowns.

John McCain yesterday joined Larry Lessig and other critics of strong copyright protections — if not on the general principles, at least on the way they apply to his campaign.

McCain’s campaign sent a letter (PDF here) to YouTube, making the following complaint:

Numerous times during the course of the campaign, our advertisements or web videos have been the subject of DMCA takedown notices regarding uses that are clearly privileged under the fair use doctrine.

Apparently YouTube has received complaints from the TV networks about use within McCain’s political ads of clips of a few seconds from news shows. The letter goes on to propose that YouTube use a different protocol before responding to these takedown notices.

The problem is that, much as we all might prefer YouTube to resist poorly founded copyright infringement claims, they would be crazy to do so. The reason is that the Digital Millennium Copyright Act gives them a “safe harbor” from prosecution if they take the offending clip down immediately, and let the party who put it up file a counterclaim. Why would the YouTube folks risk prosecution, when they can let CBS and the McCain campaign fight it out at no risk to themselves?

Well, perhaps because YouTube is owned by Google, whose mission is “to organize the world’s information and make it universally accessible and useful.” But that is probably too much to hope for, when the real problem here is not YouTube’s behavior, but the way the law is written. The DMCA invites this kind of censorship, and in a political campaign, where days count, the time required for the claim-counterclaim protocol renders the arguing pointless.

So perhaps, instead of writing to YouTube, Senator McCain might update his Technology policy page, which now states:

While the Internet has provided tremendous opportunity for the creators of copyrighted works, including music and movies, to distribute their works around the world at low cost, it has also given rise to a global epidemic of piracy. John McCain supports efforts to crack down on piracy, both on the Internet and off.

Perhaps instead of pledging to strengthen the hands of the copyright holders, he might instead acknowledge that tools for cracking down have already gone too far.

President Bush has signed a law creating a high-level position to centralize intellectual property protection efforts. As we explain in Chapters 6 and 8 of Blown to Bits, the entertainment industries have enormous influence in Washington, far greater than the forces of information freedom. This is truly over the top — it is a position to do what the attacks on innocent teenagers has failed to do. Story here (with a good cartoon) and here (with clearer reporting).

A dark day for those of us who were hoping for a more enlightened view of the balance between society’s interest in information liberty and creators’ interest in making a profit. Still, a lot depends on who appoints the new czar, and apparently it won’t be Bush.

November will mark 20 years since the word “Internet” broke into public discourse, with the release by Robert Tappan Morris of a “worm” that brought down many computers. Ten years later, the Web was in a state of exponential growth, and was already being exploited heavily for commercial and educational uses. At Harvard, by 1998 we had finished bringing high-speed connections to all our buildings.

This story about Abilene Christian University in Texas is a sign of things to come. Having discovered that the vast majority of students were bringing laptops to campus with them, they decided to equip every student with an iPhone or an iPod Touch. (Both have WiFi, and so can be used as Web browsers, email platforms, etc. Most students are picking the iPhone.) The university has passed on the Apple applications software and developed its own, presumably so it can switch to the Google phone or other open devices in the future.

That’s the provocative title of a good¬†column by Larry Lessig in the Wall Street Journal, arguing that American copyright law is unreasonably stifling creativity. That Lessig would think that is not news, but the article has some new examples of abusive practices, and makes the argument effectively. This argument is compressed from a new Lessig book called Remix, due to be published this week.

“Based on feedback from our customers,”¬† Walmart announced today that it’s put on ice the plan to shut down its DRM music server, a move that would have stranded its customers, as I reported here two weeks ago.¬†¬† This new announcement from the Walmart says that they have decided to maintain the servers “for the present time,” but adds, “we continue to recommend that you back up your songs by burning them to a recordable audio CD.”¬† It looks like Digital Rights Management is turning out to be a tarpit for companies as well as for consumers.

Here is a nice radio interview with the three authors on the HearSayCulture radio show out of California.

An interesting discussion is happening on the Volokh Conspiracy blog. The indictment against the college student who broke into Sarah Palin’s email charges him with a felony. The prosecutor, in order to get the charges up to the felony level, must claim that the break-in occurred in furtherance of some other tortuous or criminal act. Perhaps they mean that he posted the new password so others could also view Palin’s emails — that he was enabling other violations of the same statute. It isn’t at all clear, and some of the lawyers who are commenting wonder if the argument isn’t circular and the indictment flawed. That would go with the view I mentioned earlier that the crime was a misdemeanor at worst.

You can download the indictment here. It is easy to read, if not to interpret.

David C. Kernell, the college student who allegedly broke into Sarah Palin’s email account, has been indicted by a federal grand jury for intentionally accessing her account without authorization. You will recall (previous blog post here) that someone boasted of doing this by getting her password reset through knowledge of the answers to three security questions — birthdate, ZIP code, and where she met her husband.

It appears that the young man is being charged under the Computer Fraud and Abuse Act. The press release goes on to state,

If convicted of the charge, the defendant faces a maximum of five years in prison, a $250,000 fine and a three year term of supervised release.

A few days ago, experts were speculating that he would probably be up on a misdemeanor, and unlikely to do any significant jail time.

“It would be a stretch to charge a felony [in the Palin case], but if they want to be hard on [the hacker], they could do that,” [former DOJ computer crime prosecutor Mark] Rasch said. “I wouldn’t have predicted that they would use that argument in the MySpace case, but they did. So they could certainly do that to [Palin’s hacker].”

The MySpace case is the case of Lori Drew, discussed in Blown to Bits. It looks as though the prosecutors have decided to throw the book at Mr. Kernell, as they did at Ms. Drew.

In the article on email privacy I published yesterday, I mention the Palin incident, not venturing to speculate on its criminality, given Mark Rasch’s doubt about what prosecutors might do. The case will be interesting to watch.

A law is under consideration in France that would require ISPs to be the monitors and enforcers of copyright law. All Internet traffic would be monitored to make sure there was no copyrighted material among the love letters, business plans, and family photos that residents of that nation were receiving. A complete Big Brother state, at the behest of the movie and music content industries. Penalties would range up to losing your Internet connection — and entry of your name on a national registry of persons not allowed to get another. President Sarkozy is all for it.

The EU is quite skeptical, fundamentally concerned that losing your Internet connection is losing the ability to communicate, a fundamental human right. The EU Parliament debated the matter and has adopted language that causes problems for the French initiative.

It is somewhat amusing to see another nation as much out of balance as the US because of the reaction of the content industry to the digital revolution. The interesting thing is that the matter is being fought out in Europe not on the basis of property and money as in the US, but on the basis of conflicting rights, that of creators to control their works and that of human beings to communicate freely with others.