YouTube on Tuesday rebuffed a request from John McCain s presidential campaign to examine fair-use issues more carefully before yanking campaign videos in response to DMCA takedown notices.

Lawyers and judges constantly disagree about what does and does not constitute fair-use, YouTube s general counsel Zahavah Levine wrote in a letter Tuesday. No number of lawyers could possibly determine with a reasonable level of certainty whether all the videos for which we receive disputed takedown notices qualify as fair-use.

We hope that as a content uploader, you have gained a sense of some of the challenges we face everyday in operating YouTube, she added. Mccainyoutubead

The McCain campaign on Monday fired off a letter to YouTube complaining that the company had acted too quickly to take down McCain s videos in response to copyright infringement notices. McCain campaign general counsel Trevor Potter argued that several of the removed ads, which had used excerpts of television footage, fall under the four-factor doctrine of fair-use, and shouldn t have been removed.

But citing the DMCA, a controversial copyright law that McCain voted to approve a decade ago, Levine pointed out that YouTube risks being sued itself if it doesn t respond PROMPTly to takedown notices.

If … service providers do not remove the content to such notice, they do so at their own risk because they lose their safe harbor, she wrote.

Further, Levine argued, the fair-use analysis is complicated, and the creators of the videos are better equipped to perform it. The uploader can then issue a DMCA counter-notice if they believe they re on solid legal ground, and YouTube will restore the video.

YouTube does not possess the requisite information about the content in user-uploaded videos to make a determination as to whether a particular takedown notice includes a valid claim of infringement, Levine wrote. The claimant and the uploader, not YouTube, hold all of the relevant information in this regard, including the source of any content used, the ownership rights to the content, and any licensing arrangements in place between the parties.

The real problem here is individuals and entities that abuse the DMCA takedown process, she added.

We look forward to working with Senator or President McCain on ways to combat abuse of the DMCA takedown process on YouTube, including by way of example, strengthening the fair-use doctrine, so that intermediaries like us can rely on this important doctrine with a measure of business certainty.

YouTube to McCain: You Made Your DMCA Bed, Lie in It!

Google's loss is the Electronic Frontier Foundation's gain.

The EFF, based in San Francisco, said Monday it has snapped up Michael Kwun, the Mountain View-based search engine's chief of litigation.

"I've really been a big fan of EFF," Kwun said in a brief telephone interview.

Kwun, 39, graduated from Boalt School of Law at UC Berkeley in 1998. He was the lawyer responsible for managing Google's ongoing defense against a copyright case brought by Viacom. Other intellectual property courtroom disputes concern YouTube, Google Book Search, Google AdWords and Google Image Search.

"I've always been interested in technology and its intersection with law," Kwun said. "I think that technology creates a whole wealth of issues."

Obviously, he'll be making less cash at the nonprofit, where he'll focus on intellectual property. "It's rewarding in different ways," he said.

Bang.

EFF Scores Google's Litigation Gun | Threat Level

Copyfighters in Tennessee have scored a massive win, defanging a crappy, RIAA-written state bill:

Kudos to the Tennessee crew.

Copyfighters beat down Tennessee bill - Boing Boing

[1] Meet up with us next Wednesday (March 5th) to go to Nashville and protest! (5:00 AM - March 5th) we will have a bus - we will leave at 5AM in Knoxville (meet at COPYSHOP).

Gather at 8AM (if you can get there by yourself)
on the corner of 6th and Union St in Nashville!

The primary broken thing about the rule being protested here is that it would require Universities to institute a surveillance system that watched network traffic and identified transfers of copyrighted content.

Copyright protest in Nashville March 5th - COPYFIGHT NOW!

I ran for school board where I live this past fall and created some TV commercials including this one with a 'Star Wars' theme. A few months ago VH1 grabbed the commercial from YouTube and featured it in a segment of its show 'Web Junk 2.0.' Neither VH1 or its parent company Viacom told me they were doing this or asked my permission to use it, but I didn't mind it if they did. I thought that Aries Spears's commentary about it was pretty hilarious, so I posted a clip of VH1's segment on YouTube so that I could put it on my blog. I just got an e-mail from YouTube saying that the video has been pulled because Viacom is claiming that I'm violating its copyright. Viacom used my video without permission on their commercial television show, and now says that I am infringing on their copyright for showing the clip of the work that Viacom made in violation of my own copyright!

Peel back the layers of the irony onion...

Slashdot | Viacom Says User Infringed His Own Copyright

Disney lawyers' heads must be spinning over this one. A movie posted on Stanford University's site called "A Fair(y) Use Tale" mashes up all your Disney favorites to humorously and effectively explain copyright law. The ten minute movie, directed by Eric Faden, came out of Stanford University's Fair Use Project Documentary Film Program. Stanford's Fair Use Project--to which Stanford Law professor, Copyright guru, Creative Commons advocate and Wired writer Lawrence Lessig contributes--was founded last year to "support to a range of projects designed to clarify, and extend, the boundaries of fair use in order to enhance creative freedom." And, well, the movie is damn sure creative, and certainly seems to take the boundaries of fair use about as far as they can go.

The mashup cuts up and splices audio from more Disney movies than I could begin to list (or even identify) to explain the intricacies of copyright law and the fair use doctrine. It takes the works of "the very folks we can thank for nearly endless copyright terms" and flips them to argue against longer copyrights and attacks on fair use. It leads to some beautifully surreal moments, often highly recursive, with the characters of The Jungle Book and The Lion King asking questions such as "what is the public domain?" or proclaiming "fair Use is not a right; fair use is only a legally defensible position, and this is not fair...The point is if fair use actually works then movies like this one will have legal protection." Word.

This video is damn impressive.

Hijacked Disney Characters Explain Copyright

The U.S. Supreme Court on Monday moved to loosen a key legal standard used in patent cases, potentially making it easier in some cases to get the federal courts to invalidate a patent as obvious.

In a case involving vehicle throttle pedals, the justices unanimously said the courts should be more flexible in the way they interpret the standard for whether patents are valid or merely "obvious" combinations of previous inventions that should be rejected.

Supreme Court loosens patent 'obviousness' test | CNET News.com

Plenty of ink has been spilled in arguments over the proper business model for music in the P2P age. The publishers generally want to hold onto the current market-based system, but there are voices in the wilderness arguing that a compulsory license model actually makes the most sense for both artists and consumers. One of those voices is Steven Page, singer and guitarist for the Barenaked Ladies, who recently spoke to Ars about this issue and called for an ISP-based licensing model that would allow consumers access to all the music they want and would ensure that artists get paid. But the US Register of Copyrights, Marybeth Peters, calls this a bad idea.

Here's the idea: compulsory licenses allow anyone to take advantage of whatever works are covered by the license without obtaining the permissions that would otherwise be required. It is essentially an exception made to copyright law that takes away a person's right to control how copies of their material are handled. This doesn't mean a compulsory license is free, though, only that the rate is determined by statute.

The best known of these in the US is the mechanical license. Songwriters and their publishers receive this rate—currently set at $.091 per song—for every copy of an album sold that features their song. Music labels are free to negotiate a lower rate, and many do (75 percent of the mechanical rate is common), but they can simply choose to pay the mechanical royalty rate without negotiations.

But will it happen? The nation's top copyright official, Marybeth Peters, said at a recent LexisNexis/Variety DRM conference that it's not something she wants to see. "I hope we don't go to a system of compulsory licenses," she said. "I don't see how any creator benefits from a compulsory license." None of the other industry executives expressed much love for the plan, either, arguing that the market would work out all of its current interoperability problems on its own, and that a compulsory license would stifle innovation.

But Page is adamant. "We need to get our music where our fans want it," he says, "not the other way around."

I've been talking about blanket licensing in regard to music downloads for a long time now. I think it is a good idea, but I don't like the ISP based model suggested here. What about people who use the Internet and are not interested in downloading music? It's not fair to those people, and those people do exist in large numbers. It would just create an unfair situation to replace our current unworkable situation.

I think where we really need blanket compulsory licensing is at the level of the music downloading services and applications. If anyone who is building a P2P application or a music downloading service can get legitimate rights to do so, the market for music online will diversity, grow, and change as we want it to. We would see different approaches to providing music online if everyone who wanted to could open their own music downloading service.

We really want the reporting about what is being downloaded to be as specific as possible. We don't want to take the approach PROs take to radio, and dole out royalties based upon sampling what is present in the P2P networks. That type of system has a disproportional benefit to larger artists.

In order to get the desired level of specific reporting of downloads at the ISP level, we would have to institute what amounts to total monitoring of Internet connections. We don't want that kind of infrastructure to even exist at the ISP level, as it would eventually be horribly abused. Let music downloading services and applications handle that role.

Barenaked Ladies: If I had a compulsory blanket music license

There is widespread agreement that "WKRP in Cincinnati" was one of the greatest television sitcoms ever produced. The original episodes are rightly considered to be a national treasure and cultural landmark.

Copyright law madness has destroyed it forever - plain and simple.

WKRP was created at a time when mass consumer home video was unheard of. As a result, the much of the music was only licensed for a limited number of years for use on broadcast television. You would think that by licensing the music, a derivative work such as a television show would have a fair use right to continue to use the music in order to preserve the artistic integrity that was vital for show to continue to exist. You would think that – but you'd be wrong. Within the maddening culture of entertainment legal affairs, the music licenses did not entitle the episodes to continue to use the music in other mediums in the future. The only way the show could be seen in the future was to destroy its original artistic vision and substitute other music tracks, which in some cases completely alter the feel of the scenes.

Most copies of the original show were destroyed – out of fear that if a tape were mislabeled and still contained the original music, then even a single accidental airing of the episode containing the original (unlicensed) music could subject the company to massive liability.

To make a long story short, WKRP is finally being released on DVD. However, they were not able to clear rights for the music. All the music used in the show has been replaced with generic Muzak.

Early word is that the release of this WKRP in Cincinnati is an artistic travesty.

Big surprise there...

WKRP In Cincinnati – Requiem For A Masterpiece

Internet radio broadcasters were dealt a setback Monday when a panel of copyright judges threw out requests to reconsider a ruling that hiked the royalties they must pay to record companies and artists.

A broad group of public and private broadcasters, including radio stations, small startup companies, National Public Radio and major online sites like Yahoo Inc. and Time Warner Inc.'s AOL, had objected to the new royalties set March 2, saying they would force a drastic cutback in services that are now enjoyed by some 50 million people.

In the latest ruling, the Copyright Royalty Board judges denied all motions for rehearing and also declined to postpone a May 15 deadline by which the new royalties will have to be collected.

This last week, I discussed the current state of Internet radio with a representative from Clear Channel. He told me that they were against this, yet they have no desire to use any of their power to influence the situation. Conviction is either not a word in their vocabulary, or there are other interests in play.

Internet radio has been dead for awhile. This nail is being hammered long after the coffin is secure. We need to ask why Internet radio had to die, as it's death was clearly consensual.

The economics here are completely screwed.

We are at the point where the only avenues available are those of public policy. Whenever I discuss these issues with players in the music industry -- and I do, regularly -- they don't understand this. There is a great fear and apprehension among those in the music business to approach problems from the angle of public policy. I'm starting to seriously wonder why...

Internet radio. Blanket licensing for digital music downloads. Statutory licensing for sampling. Et cetera -- Endless list of issues...

Was pushing an audio stream over a network pipe too extreme for incumbent interests? I know what answer you'd get if you ask Voynage.

This just pisses me off... I clearly see the solution given by the incumbent media powers: "Shut it off until we figure it out."

If this approach had merit, sales would not be down 13% this year.

Update: SoundScan turned the industry on its tail in the 90's because it had a picture that was more complete than that of anyone else. That is not the case today. The complete picture is currently more absent than it has ever been.

Internet radio broadcasters dealt setback == On to Public Policy