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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.

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.

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.

Just when you thought it might be safe to go back into the water …. the DMCA anticircumvention sharks have started circling again.

Last week I blogged about how it is becoming more and more apparent, to the content industry as well as to consumers, that Digital Rights Management (DRM), enshrined in law through the DMCA’s anticircumvention provision, is a dead-end business model as well as a drag on innovation. See Signs of a Move Towards Balance? (Part 2 of 2).

But not everyone has gotten the message, in particular not the Motion Picture Association of America, which today filed a lawsuit against Real Networks, charging it with violating the DMCA by distributing RealDVD.¬† The RealDVD software lets consumers copy DVDs to their personal computers.¬† It doesn’t permit unlimited copying, but rather uses its own form of DRM to lock the copy to be playable on only a single PC; additional PCs require additional licenses.

What we’re seeing here is another example of the dynamic described in B2B, where the industry uses the Copy Control Association (CCA) licensing scheme to squelch innovations that they don’t like: innovations like RealDVD that (horrors!) make DVDs more friendly¬† for consumers.

Real Networks, for its part, has filed its own suit, asking court to rule that RealDVD is in compliance with the CCA license.¬†¬† That’s not unreasonable: at first blush, RealDVD seems a lot like the Kaleidescape case described in chapter 6 of B2B, where the content industry huffed and puffed, but where the court found there was no license violation.¬† Yet, that was a different court.

Regardless of who wins in court, the fact is that this continues the DMCA’s track record as a dead weight hanging over the head of innovation.¬† Decisions that should be made on the basis of technology and consumer choice are instead being made by courts struggling to interpret a law that was a bad idea when it appeared in 1998 and has revealed itself to be a worse and worse idea every year.

Signs of a Move Towards Balance? (Part 1 of 2) reported on the mistrial in the Jammie Thomas case, with the court coming to appreciate the overreaching of prosecutions for music sharing, rejecting the RIAA position that simply “making music available” should be punishable as unauthorized distribution, and Judge Davis recommending that Congress reconsider the egregious statutory damage penalties for copyright infringement.

Last week’s other optimistic signal was the continued erosion of DRM-protection as a means of music distribution.¬† Digital Rights Management (DRM), remember, is the technological band-aid that prompted the 1998 Digital Millennium Copyright Act (DMCA), the law that we rail against in B2B as an anticompetitive drain on innovation. We argued in the book that DRM hurts consumers and competitiveness, and we took approving note of some alternative distribution models for music that were coming to market just as we were completing our manuscript, such as the availability of DRM-free music from Amazon.

Two days ago, MySpace joined the DRM-free music distribution party with what may turn out to be the most significant of all the new models: MySpace music. MySpace users can now select from hundreds of thousands of non-DRM tracks to stream to their computers. The service is free to MySpace users, supported by advertising. You must be connected to the net to use the service. If you want a copy to listen to off-line, you’ll have to buy it from Amazon or iTunes.

Actually, I bet people have already using stream recorders to save he tracks for offline use. But in any case, having to be connected to the Internet isn’t a big deal any more. The reality is that MySpace users now have the “universal jukebox”, as we described it in B2B, that Napster presented in 2000 and 2001. The appeal will be just as great, and this time it’s legal. Of course, where MySpace goes, can Facebook be far behind? And who knows what other budding social networks? We’re finally coming to the end of the hallucination that DRM is the key to the Internet content economy. Today it’s free music tracks, but video will follow: it’s only a matter of storage and bandwidth, and the inexorable pace of Moore’s Law. Are you listening, MPAA?

As if on cue, but surely unrelated, Walmart yesterday announced the death of a third large DRM music service and the consequent stranding of consumers. This follows on the heels, as we previously reported, of Microsoft (April 23, 2008, MSN Music RIP) and Yahoo! (July 26, 2008, Yahoo joins the ‚Äústrand our DRM customers‚Äù game). As of October 9, the hapless purchasers of music tracks from Walmart.com Digital Music, will no longer be able to move “their” music to new machines, compliments of Walmart ceasing to support its license server.

So DRM-based music distribution continues to die: consumers don’t want to buy it, providers don’t want to support it, and there are wildly better alternatives emerging. But it’s still the same old story with Congress continuing to not get the message, and continuing to grasp on to DMCA anticircumvention and even starker penalties for copyright infringement. Our solons still live in fear of some 1990’s bogeyman story of entertainment industry imminent collapse that never was true and becomes more transparently a fairy-tale every day.

As we wrote in B2B:

If the content industry moves to better business models and the DRM battles subside, the DMCA’s anticircumvention provisions may continue to be anti-consumer, anti-competitive blots on the digital landscape. Unless repealed from the legal code, they would remain as battlefield relics of a war that was settled by peaceful means—unexploded ordnance that a litigious business could still use in ways unrelated to the law’s original intent.

Let’s give all those Congressman MySpace accounts, so they can learn what a dying system they’re trying to shore up.

This week saw two significant developments in the world of copyright and digital information described in Blown to Bits chapter 6, “Balance Toppled.” They signal that things just might be starting to move back towards balance.

On September 24, Judge Davis set aside the jury’s October 2007 verdict in the Jammie Thomas case.¬† That’s the case discussed in B2B of the Minnesota single mother who who was fined $222,000, $9250 per song, for sharing 24 songs on the Kazaa network, the case that became the recording industry’s “we told you so” for why people accused of file sharing by the RIAA should settle even if they are innocent, because the stakes in losing can be so high.¬† As we described in the book, Thomas’s penalty demonstrates the egregiousness of the statutory damages for copyright infringement when applied to the Internet.

Last June, as I noted in this blog, trial Judge Thomas asked whether he had made a legal error in instructing the jury that simply making music available from a computer counts as unauthorized distribution under copyright law, even if no actual distribution takes place.  (See “Sending a Message”: Revisited.)

Now Judge Davis has decided that this was indeed an error, and has granted Thomas’s motion for a new trial.¬† This is a blow to the RIAA’s lawsuit strategy: Not only does it erase the current scariest example of damages, but it’s another court that has rejected the “making available” theory: to convict someone for music-sharing copyright infringement, they will have to demonstrate that actual distribution took place, not merely that files were available on the accused infringer’s computer.

Perhaps even more notable is Judge Davis’s plea to Congress to reconsider the law about statutory damages.¬† As he writes in his opinion:

“The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases…. The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts…..[I]t would be a farce to say that a single mother‚Äôs acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market……. [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs.”

Amen.

See Signs of a Move Towards Balance? (Part 2 of 2)

Google’s YouTube is huge, much huger than any other video sharing service. Like Google’s search service, it has become the place to go for a certain kind of information — a kind of information that is rapidly becoming a part of daily life for millions of people, especially the young. Like Google search, there is absolutely no barrier to someone starting a competing service, except for the quality of the product and the snowball effect — people tend to use the service they know other people are using, especially for sharing information.

So when information becomes unavailable on YouTube, it’s interesting to notice, and to wonder what principles govern the decision to remove material at the request of a complaining party. Two recent examples of YouTube takedowns:

The first is an Air Force recruiting video someone posted to YouTube. A blogger for the online edition of Wired Magazine, Kevin Poulsen, linked to it from a short piece about the fight against cyberterrorism. The Air Force issued a DCMA takedown notice to Poulsen, and if you go to the original post and try to play the video, you discover it’s no longer available. The curious thing about this one is that the people of the U.S. own that video. In fact, the Air Force web site on which the video appears (it’s still available there) states,¬†”Information presented on the Air Force Recruiting website is considered public information and may be distributed or copied.” This is a simple abuse of copyright law, a club that the powerful use to whack those who use their creations for no other reason than to comment on them. Even when they don’t have the legal right they claim, the DCMA is an effective tool against small players who would have to hire lawyers to defend themselves.

The second example is a video documentary about Sarah Palin’s church, which YouTube removed not, apparently, because of a copyright complaint, but just because a bunch of people complained about it. It contains some odd segments (“cell phone anointing”?) but there is no apparent fraud; as far as I can see no one claims that the shots are not of what they seem to be. In this case the video is still visible, though not at YouTube (click the link to the article).

Private censorship. It’s perfectly legal; none of us owes YouTube anything, and they can post or take down whatever they want. And they have absolutely no obligation to tell us why they take things down or when they would resist a request to take something down. I would guess that the rule is pretty simple, and it’s like what we say about search engines in Blown to Bits: The objective is to make as many people happy as much of the time as possible, with the ultimate goal of making as much money as possible for as long as possible. Nothing wrong with any of that, but we shouldn’t get carried away with grand thoughts about “digital democracy” and the “triumph of popular culture.” Nonsense — business is business.

A law firm acting on behalf of the Church of Scientology has sent more than 4000 takedown notices over a twelve-hour period this past weekend, demanding that videos and other information critical of the Church be removed from public view. The Church of Scientology is famous for this abuse of the provisions of the Digital Millennium Copyright Act.