A Law Professor's Opinion of Viacom vs YouTube

troll -1 writes "Lawrence Lessig, a well-known law professor at Stanford, has an op-ed in the NY Times entitled Make Way for Copyright Chaos which references the Viacom vs YouTube case. What's interesting about this article is that it gives some historical perspective on copyright law and the courts. Up until Grokster, Lessig says the attitude of the courts was, 'if you don't like how new technologies affect copyright, take your problem to Congress.' But in the Grokster case the court seemed to rule against the technology itself, cutting Congress out of the picture. He also explains that Viacom is essentially asking the Court to rule against the safe harbor provision of Title II of the DMCA which should protect YouTube and others against liability so long as they make reasonable steps to take down infringing content at the request of the copyright holder. Lessig doesn't give us any insight into who's going to win but he does conclude that 'conservatives on the Supreme Court have long warned' about the dynamic of going against Congress when it comes to copyright."

Comments

Anlogous to Slashdot vs Scientologists

[CrazyJim1]

Is Slashdot responsible for it's user's material? No.
Should YouTube be responsible for it's user's material? Viacom says yes. Viacom doesn't want to get into the buisness of tracking down users individually.

Now is Google supposed to rat out offenders minimally? Or is Google supposed to become the user generated content police themselves? If they are, it sets a bad prescedent for all text forums online in that the moderator will have to make sure the posters aren't posting something copywrighted. I won't get into draconian measures an oppressive government has on free speech, even though it does tie in.

Re:Anlogous to Slashdot vs Scientologists

[OECD]

Viacom doesn't want to get into the buisness of tracking down users individually.

And that's exactly what this is all about. They're shoveling against the tide. They won the right to have the premptive say in what is or is not a copyright violation, but belatedly realized that it's a hell of a lot of work (ironic, since it actually mirrors the "opt-in" provision of all earlier copyright laws). Now they're trying to outsource that job to content providers, even ones that comply with their DMCA notices.

Re:Anlogous to Slashdot vs Scientologists

[TubeSteak]

Now they're trying to outsource that job to content providers, even ones that comply with their DMCA notices.

While Viacom (IMO) is on the wrong side of the law, Google/YouTube may have potentially created a problem when they instituted filtering for media companies that are willing to make a licensing agreement.

YouTube has the technological capability to minimize infringement, something that wasn't feasible in 1998...

Viacom is going to make the argument that since YouTube has it, they should be forced to apply it on Viacom's behalf.

Re:Anlogous to Slashdot vs Scientologists

[sumdumass]

No, Google and Youtube doesn't have the ability to screen copywriten works. And here is why.

I give you and only you the permision to repost anything I have writen on slashdot and hold an automatic copywrite over. How is anyone supposed to know you have permision as aposed to someone else not having permision? Currenty, the person who can give permision has to say "hey, you don't have my permision" then goto the appropriate chanels to get the content removed if and when the user doesn't.

Now suppose as part of the user agreement to Youtube, It says you post only what you have copywrite to or permision to use from the copyholder. How are they going to verify the copyright is theirs or that the user has permision to use it? They need to contact the copyright holder. But the copyright holder isn't always clear when the posting consists of a few clips of some obscure show or scenes from some show that doesn't readily make it obvious what the show is. Are they now supposed to have a team of people that reviews every show, movie, song, book, whatever else that can be copywriten in order to scan ever file uploaded in order to see if it is someone elses and how to contact them to verify someone has permision?

It is the copy owners job to determine if their work is being used against their rights acording to the right given by the copyright. It is there job to give notice and request it stop. Google having some op in service is a way for the copy owner to let google/youtube know who does and who doesn't have permision to use a certain piece of copywriten work outside of someone saying they have the right to do so.

Digital Rights Act

[geekbeater]

As the opinion piece clearly points out, a deal was struck by law in 1998...now one of those parties doesn't want to have to hold up its end of the deal. (Viacom self monitoring of content providers) It is always frightening when the courts make law, of course it is rightly obvious that is not their intended responsibility to do so...but the oversight of lawmakers has been usurped by their fear of not being re-elected...no one in congress wishes to show leadership...i.e. "rock the boat" as it were , heaven forbid if they can't stay on the DC party circuit.

Wrong arguments....

[zappepcs]

While the arguments on the table are whether Viacom right or is YouTube right, but the real question that will be answered by the outcome of this little court battle is: what will video entertainment look like in the coming decade? If Viacom wins, it will look pretty much like it does today. If YouTube wins, it will look like we all want it to look: Video on demand, anywhere, anytime, any content.

I say that because Google/YouTube is one of the few companies that actually wants to provide such services. They have the right business model to do so, and they are making stars out of ordinary people. There is some evidence to show that YouTube sites et al will replace network television in short order if network television continues to suck and user generated content continues to get better. Mashups will make the 45,000+ channels of on-demand YouTube content even more coherent, and thus more attractive to the average viewer.

Back to the question on the table. The article clearly shows that what Viacom is pissed off about is that they have to look for the infringement on their own, or PAY YouTube to do so. Personally, I think Viacom is just whining because they are being hung with their own rope!

IMO, it would benefit the industry, the country, the world if YouTube wins. I say this because on-demand content is the future, and not the kind where you are paying DVD rental costs for each view. The on-demand video industry will replace television eventually, but it cannot grow to that size if the Viacom's of the world are allowed to destroy it before it gets off the launching pad.

Ironically

[eclectro]

Many people have roasted GWB for his apparent glaring shortcomings. But I bet his one lasting legacy will be his judicial appointments to the supreme court that may reign in copyright gone amok.

Who didn't see this?

[shrapnull]

Even before Mark Cuban stated that whomever bought YouTube would become a "marked" company, how many of us genuinely thought that YouTube could succeed with millions of leechers benefiting from loose standards under the guise of "Fair Use" and no income?

Google _had_ to expect this. They probably consulted Lessig _prior_ to purchasing the startup. The thing is, this is the showdown that we all expected. Does 'Fair Use' exist? Are content providers liable for member uploads? How is YouTube above the laws that Napster collapsed under? According to the "big, bad DMCA" the _victim_ has to prosecute, which in this case is Viacom, and by the same standards, they should be forced to go after individual users (uploaders) that are at fault, like the RIAA.

The real issue at hand is that copyright law is in complete disarray today. It has an identity crisis that makes such a risky purchase on Google's part worth pursuing on the off-chance that they can score several million more users and page impressions, while still weathering a lawsuit of this magnitude.

The justices will ultimately determine who the winner/loser is, not Congress. This is a rare stage in history where the "intent" of the law will determine its true meaning and either empower or enslave the people going down one path or the other.

Lawrence Lessig, familiar name?

[Talennor]

Since when is Lawrence Lessig introduced on Slashdot simply as "a law professor"?

Big in the "Free Culture" movement and writer of the phrase "code is law". Slashdotters should recognize this name.

The problem is volume

[edwardpickman]

Youtube's business model has depended on copyrighted material for roughly half it's content. Their stance is tell us what you don't like and we'll take it down. Well they are effectively asking the copyright holders to police their site. Viacom will have to create an entire department just to police Youtube. Youtube benefits from the traffic while Viacom takes on the expense of tracking down copyrighted content. Let's say I start a TV network based on old TV shows. Half are in public domain and the other half are copyrighted. My policy is is you complain about a specific episode I'll stop broadcasting that episode. It's even worse with Youtube because it's like tens of thousands of TV stations running at the same time and even if they take down the episode some one can post it again minutes later. It's an impossible situation for Viacom. The only option other than fighting it is to let them run content for free. If they do that the advertisers will refuse to pay when large numbers watch commercial free postings. There's already been a drop in commerical revenues. The networks are facing a loosing battle and what it means is eventually little or no new content. In the old days just for primetime the networks would do three hours or more of content with even more non primetime content. Now nearly half of television is paid advertisements and a lot of the rest is reruns. The average for primetime content is less than two hours and dropping and a lot of that is reality TV. Network TV won't survive in the long run. People may not post and file share lesser shows but they will the popular ones and those are the profitable ones due to commercials. Take away the profit and TV goes away. The only other option is going to a BBC system where tax money is used for broadcast TV and the budgets of the average show is pocket change.

Grokster is in favor of YouTube

[Petey_Alchemist]

I believe that if you read Grokster, you will find that the court's rationale is favorable to YouTube.

Let's look at the holding:

Held: One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirma- tive steps taken to foster infringement, going beyond mere distribu- tion with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the deviceís lawful uses.

This does not apply to YouTube. YouTube, by actively discouraging infringers by being *overzealous* when pursuing alleged infringers (see Chung, Anshe; Crook, Michael), and plasting the site with warnings, and setting annoying upload limits that are shorter than television episodes, is not conducting itself in any manner remotely analogous to Grokster.

Technologically, YouTube is more analogous to the Napster case (centralized database, ability to terminate users). But Napster was never found guilty--it was just found that an injunction could be filed against them, and the legal costs forced bankruptcy.

I do not see Viacom winning this case, and I am surprised Lessig didn't opine similarly.