UPDATED AGAIN: Wafergate, Radio-Canada/CBC and the Youtube takedown: Oh boy, an excuse to geek out about copyright law!

UPDATED AGAIN! Scroll down for the official response from CBC/Radio Canada and the poster behind the extended “Wafergate” video!

With thanks to Michael Geist — and whoever first noticed the sudden disappearance of the extended remix of the PM taking communion at the LeBlanc funeral — ITQ is on the case. (Seriously, an excuse to write about digital copyright law? Just try to hold her back.)

Inquiries have been sent out to all of the parties involved — really, you haven’t lived until you’ve tried to explain Wafergate to the sure-to-be-utterly-baffled Youtube press officer at the other end of the general press email address —  and I’ll keep you posted as more information comes out, but in the meantime, I just wanted to make a few quick points based on the discussions that have arisen thus far.

Some people seem to be confused as to why it would be CBC/Radio-Canada, and not CPAC, that would issue the takedown request, since the clip in question was taken from the CPAC broadcast of the funeral. Although I’ve not yet confirmed that this is the case, my guess is that this was pool footage, provided by CBC and picked up by other networks, including CPAC, which would make CBC/Radio-Canada the legal owner.

A more interesting question, in ITQ’s opinion, is whether the complaint was made under the Digital Millennium Communications Act — the DMCA to its friends and foes — which allows the allegedly infringing poster to file a counternotification  — basically, they send a letter to Youtube rebutting the allegation that their use of the material constitutes a copyright infringement — to a takedown request. At that that point, Youtube – at least, under the law – is obliged to put the clip back online, having fulfilled its legal responsibility. The onus is then on the complainant — Radio-Canada/CBC, in this case — to launch an infringement claim against the poster. If they don’t, the clip stays up.

So, is the original poster — whose username, unfortunately, is no longer available on the site — planning to issue a counternotification? He or she has ten days in which to do so, and as far as Geist can see, that the footage would “certainly qualify under ‘fair dealing'”.  Geist wrote about Canada Post’s involvement in a similar notice-and-takedown case here, and points out also points out that, if a complainant is found to have knowingly misrepresented the facts in issuing a takedown request, they could face legal penalties.

Anyway, that’s all theoretical for now — and ITQ hopes she’ll have more information for y’all later, so check back this afternoon.

UPDATE: This just in from Radio Canada/CBC spokesman Angus MacKinnon:

[T]he footage was indeed pool, shot by Radio-Canada for CBC, CPAC, and TVA. On behalf of pool members, Radio-Canada requested that the footage be removed from YouTube due to copyright infringement (something it does on a regular basis). It was deemed that no ‘fair dealing’ exception was applicable in this case. I can’t provide you with a copy of the request, because none was formally filed. That’s because takedown requests are executed by way a system that YouTube sets up for large copyright owners, which allows us to quickly identify and remove content without having to file formal applications every time. As for our policy on fair dealing with regard to YouTube-d material, it’s judged on a case-by-case basis.

I’m still not quite clear on whether the Youtube content verification process allows the poster to counternotify to a complaint, but I suspect it would, since that is, as Geist pointed out in an earlier email, the method by which ISPs and other providers, are able to avoid liability in a subsequent complaint. I haven’t heard back from Youtube yet, but will update this post when I do — and if anyone happens to have contact information for the original poster, I’d love to know if they’re planning to issue a counternotification to the takedown request.

UPDATE – ANONYMOUS POSTER SPEAKS: Isn’t the internet wonderful? Somehow, the Youtuber responsible for posting the clip in question found out that ITQ was looking for him/her, and dropped us a note to say that, although he/she “would love to [counternotify]”, they can’t risk having their identity exposed, for job-related reasons. Which is too bad, because it would have been interesting to find out what would happen if they did, but ITQ understands that sometimes, one has to put one’s livelihood and well-being first.

ITQ has also heard back from Youtube, but it was too late to return the call tonight, so she’ll try again tomorrow. Stay tuned!