Google to Viacom - The Law is Clear, and On Our Side

An anonymous reader writes "Google responded to the opinion piece in the Washington Post by a Viacom Lawyer with a letter to the editor titled 'An End Run on Copyright Law.' Their strong wording sends a very concrete message: 'Viacom is attempting to rewrite established copyright law through a baseless lawsuit. In February, after negotiations broke down, Viacom requested that YouTube take down more than 100,000 videos. We did so immediately, working through a weekend. Viacom later withdrew some of those requests, apparently realizing that those videos were not infringing, after all. Though Viacom seems unable to determine what constitutes infringing content, its lawyers believe that we should have the responsibility and ability to do it for them. Fortunately, the law is clear, and on our side.'"

Comments

Tag this:

[Cocoronixx]

omfgpwnt

Re:Tag this:

[theStorminMormon]

Seriously, that is ownage like I've never seen between large corporations before.

It looks like Google did in fact know exactly what they were doing when they bought YouTube. Right now Viacom looks pretty much like they just stepped on head of a rake and got whacked in the face.

If there's one thing you can say for Google, they know how to stand up for sane copyright law.

Re:Tag this:

[Xtravar]

If there's one thing you can say for Google, they know how to stand up for sane copyright law.

That's because Google's entire business model is based around using other people's copyrighted material.

It's a symbiotic relationship where Google can use pieces of peoples content to advertise over while simultaneously causing that full content to be consumed, making the creators money.

What a strange new world...

Re:Tag this:

[theStorminMormon]

You want to *abolish* copyright law? See, now I think that that is somewhat less than sane. Picture this scenario: J. K. Rowling's Harry Potter is picked up by a small publisher and they sell a few hundred thousand copies. This gets the attention of a giant publishing house, which quickly rushes out millions of copies of the book and refuses to pay Rowling anything.

So now what? Does she write book 2 knowing that if she publishes it she'll only sell a few hundred thousand copies before stores are swamped with the (now legal) copies from the major publisher? Or does she just quit writing.

If there's no copyright, than it makes a lot more sense for media publishing companies to quit paying artists, and specialize in leeching off of small publishers. Which in turn means the small publishers will increasingly make no money for actually paying the media creators, which means the media creators eventually go back to flipping burgers.

In short: abolishing copyright entirely completely eradicates the financial incentive to pay artists to make work. I'm sure some will do it anyway, but most people have to make a living, so there will be virtually no professional, full-time artists of any kind ever again. That, to me, is insane.

Re:Tag this:

[Dan Slotman]

omfgpwnt I have a better idea—don't tag it that. Google's publicists didn't get in any more concrete argument here than Viacom's did.

Both Google and Viacom desperately want to set the agenda and the precedent for online distribution of media. With the increased importance of digital distribution, the future of both companies may depend on convincing the courts to see things their way. These ploys are merely the skirmishes between forces scouting for good positions; the real battle is yet to come.

Re:Tag this:

[voice_of_all_reason]

False dilemma, red herring, total logical disconnect.

Your wife owns herself. And no one's arguing that we should drop ownership of property laws. Objects can be owned by nature of them being tangible.

Information is nothing but a different 'type' of object, and there's no reason there should't be ownership laws involved

How about "the will of the people?"

Re:Tag this:

[Logic and Reason]

...so there will be virtually no professional, full-time artists of any kind ever again. That, to me, is insane.

Why? Is the concept of a "professional artist" somehow sacred? Anyway, this is not true: think of musicians who make a living doing live shows. Maybe that wouldn't work for some types of artists, but again, why should they be guaranteed a certain way of making money?

Re:Tag this:

[pnuema]

In short: abolishing copyright entirely completely eradicates the financial incentive to pay artists to make work. I'm sure some will do it anyway, but most people have to make a living, so there will be virtually no professional, full-time artists of any kind ever again. That, to me, is insane.

I'd like to point out that the greatest works of art of all time were produced in an era where there were no such things as copyright laws. It's called patronage, and it worked for thousands of years.

Maybe if every teeny bopper whore who wants to pout at a camera, sing to an over-produced track and get paid millions for it suddenly can't make money because the artificial monopoly supporting such a business model vanishes, we wouldn't be innundated with mindless crap. Maybe we would all be better off if the only people who made art were the ones that were passionate enough to make it without thought of getting paid.

Nah, you're right. That's crazy.

Re:Tag this:

[Anonymous Coward]

Your scenario doesn't show, never mind prove, that copyright is a public good. Picture the mega-publisher skimming Rowling away from the mini-publisher for the second book, just like any other star content producer. Maybe you've seen what happens to truly great software builders? The Dead did just fine giving away their concert music, because they were in the business of _producing_ music, not _protecting_ it.

Copyright was originally created to protect content from those who would change it and resell it as the original content, so when you bought a book allegedly by Rowling, it actually had Rowling's words in it and not someone else's edited version.

If there's a serious economic analysis of the public costs and benefits of copyright with such a clear result, I'm not aware of it. I've only heard bald claims and anecdotal handwaving. http://www.law.stanford.edu/publications/stanford_ lawyer/issues/73/Property.html is an interesting article, tho. Another is http://www.jstor.org/view/00472530/sp030004/03x003 8l/0?frame=noframe&userID=81531f02@mitre.org/01cc9 9331f00501bacefb&dpi=3&config=jstor
but again, no strong result.

Re:Tag this:

[sofla]

In short: abolishing copyright entirely completely eradicates the financial incentive to pay artists to make work. I'm sure some will do it anyway, but most people have to make a living, so there will be virtually no professional, full-time artists of any kind ever again. That, to me, is insane.

otoh, it would discourage those artists who are cranking out mindless drivel (*cough* *cough* Robert Jordan *cough* *cough*) just to sell a few copies so that they can make a living.

As far as what J.K. Rowling might do in your hypothetical scenario, I think these options are more likely:

1. hold out for more money upfront, as a lump sum payment
2. switch publishers

Don't get me wrong, I'm not saying that we should abolish copyright law entirely, but holding on to outdated business models doesn't make sense either. IMO, its only a matter of time before the book publishers lose their monopoly position just as the music and movie publishers have. Music and movies got hit first because you don't have to interact with the media itself to enjoy the content - you load it into the player and walk away. Its different with a book. At least, for now.

Re:Tag this:

[sBox]

I'd like to point out that the greatest works of art of all time were produced in an era where there were no such things as copyright laws. It's called patronage, and it worked for thousands of years.

You go ahead and try to make an exact copy of Jackson Pollock's 'One: Number 31' in 10s, 10m, 10h, 10d or 10y. Go ahead, start now. Let me know when you are finished and you can have your juice box.

Re:Tag this:

[Jtheletter]

Anyway, this is not true: think of musicians who make a living doing live shows. Maybe that wouldn't work for some types of artists, but again, why should they be guaranteed a certain way of making money?

It's not the artist's income only that copyright seeks to protect, it's also the cultural enhancement that society itself recieves and benefits from, which is more intangible but nevertheless a Good Thing. Yes, if all copyright were abolished some artists in some mediums would continue to produce, but we would not have anywhere near the amount of creative works we have now since it would be much harder to earn a living without doing some other parttime work. Copyright is supposed to strike a balance between the needs of the creator (income) and the needs of society (entertainment, culture) but lately the balance has been pushed by corporations far in favor of the creator, or rather the holder of the copyright. One way that this might also be addressed is to prohibit the wholesale transfer of copyrights to corporations, removing the incentive for a corp. to hoard works and lobby for ever stronger/longer terms. Just a quick thought, needs more fleshing out.
My main point was to defend the parent who I believe is essentially correct: removing all copyrights will in the end hurt artists by making it harder for them to make a living solely from their works and returning us to a period where works are produced mostly on commission, which means only the wealthy could afford what we take for granted today. It won't happen overnight, and it won't stop all artists from producing, but the variety, quality, and breadth of works currently available will definitely decrease.

Re:Tag this:

[shystershep]

fanart, remixes, mods

Interesting choices for examples of stuff people are willing to produce for free. Each and every one of those is a derivative work, or at least based on someone else's original work -- which is mostly likely copyrighted and created at least in part for profit.

Sure, you'd lose the work of some (like Harry Potter), but it wouldn't disappear entirely.

So we'd lose all of the original work, and be able to 'mod' and 'remix' each other's derivative dreck. Woo hoo.

Re:Tag this:

[alphamugwump]

You failed to take into account the effect that repealing copyright would have on large publishers, and the way they interact with authors. It wouldn't be small publishers that would pick up books, followed by big publishers. That is the model that is followed now.

More likely, the author would publish the book online, and rake in revenue from advertising. Sure, someone could leach the content, but the official site would always have the book out first, so everyone would go there instead of stealing it.

There would be no big publishing houses. Period. If there is enough demand, the author could simply accept preorders, and publish a small run.

This would actually lower the barrier to entry, leading to a greater diversity of stuff, rather than the current system, which is completely controlled by large publishing houses. Of course, it would probably be a good bit harder to make a living off ad revenue, making life difficult for professional creators. But then again, most of the stuff right now is crap anyway, so it's a toss-up.

Re:Tag this:

[HikingStick]

While not a lawyer, the precedent in this case is in the realm of flea markets. Copyright owners are responsible for identifying infringing content, not the organizers of the flea market.

Now, if it became clear that flea market organizers kept welcoming DVD pirates back (after the infringing content has been discovered previously), then the organizer may be setting him/herself up for some argument of complicity...

Re:Tag this:

[ZombieRoboNinja]

Yay, back to the good old days where the only art produced was that that explicitly glorified the extremely wealthy!

Re:Tag this:

[arudloff]

I'd like to point out that the greatest works of art of all time were produced in an era where there were no such things as copyright laws. It's called patronage, and it worked for thousands of years.

Thousands of years without every man, woman and child owning a high speed "printing press" in their homes

Re:Tag this:

[bberens]

As far as what J.K. Rowling might do in your hypothetical scenario, I think these options are more likely:

1. hold out for more money upfront, as a lump sum payment
2. switch publishers

Except that no publisher in their right minds would pay JK any significant sums of money because as soon as the first copy is on the bookshelf publisher b can print their own copy. If JK were to switch publishers to publisher b, then JK is faced with the same problem.

Re:Tag this:

[2short]

"I'd like to point out that the greatest works of art of all time were produced in an era where there were no such things as copyright laws."

I'd like to point out that there was no such thing as effective copying. Patronage worked great when directly hiring a creator to make something was the only way to get it, because there wasn't any technical capability to make a copy.

Does the "mindless crap" you're inundated with include the output of all programmers, architects, authors (non-fiction and fiction), engineers, etc. etc. ? Pop musicians are not very representative of the rather significant segment of our society who currently depend on copyright.

I'm a big proponent of copyright reform, but the implication that simple abolition is a no-brainer doesn't fly in my book.

Re:Tag this:

[Miseph]

Ok, I have mod points, but I really wanted to reply to this and the whole article's moderated to hell anyway... I don't do AC.

The problem with your first point is that the mega-publisher has no incentive at all to do that. They'd probably have to pay Rowling a shit-ton of money if they wanted to publish her next book, and all they had to do the first time is pay $20 for a retail copy. Do you really think they'll ever give up a deal that sweet for, literally, no reason? The Grateful Dead may have done a huge number of free concerts, but you're kidding yourself if you think even a majority of them were, they were just nice enough to allow paying concert goers to record and legally distribute (for free) the recordings if they so chose, though they charged extra for that privilege. They most certainly did not give away their studio recordings for free. You're crazy if you think The Dead didn't profit greatly from copyrighting their work, though it should be noted they did so without selling out or being draconian about it.

Your second point is just wrong. Copyright was never intended to keep one party from fraudulently claiming that another created something. That's what trademark is for, as well as libel. If I take a copy of the new Harry Potter book and publish a thousand copies without getting permission and paying her (and her publisher, and anyone else I'd need to pay), I'm in violation of copyright; if I cross J.K. Rowling's name out, write mine in, and publish a thousand copies without paying her (etc), i am both in violation of copyright and flagrantly plagiarizing her; if I write up a thousand pages of TimeCube style ranting and publish them so that they appear to be a copy of the new Harry Potter book, then I am in violation of trademark , and Rowling et al would probably have a very strong libel and defamation case against me... I would also, most likely, by committed to a mental health facility pending psychological evaluation.

The problem is not with copyright (or patent) itself, because we really do need that in order to protect content creators (or inventors) from predatory publishers. The problem is with our current implementation. Part of the problem is also that many content creators are completely unwilling to accept that there are other ways to profit: like providing paid support for free software (a la all the major Linux players), live performance (I think Shakespeare is the single best example of this: he wrote all of his plays so that his theater troupe could perform them for paying audience members and wrote his non-dramatic works as a way of advertising his talents to the upper classes in hopes they'd sponsor the company), or various other techniques, but they aren't always practical or applicable (a painter, sculptor, or novelist can't really touch up the work after the fact, or expect people to pay to watch them work, they really just have to sell their work, and in the case of the novelist they can't even rely on others not to be able to copy it exactly or customers to be able to recognize such copies or care if they do).

Re:Tag this:

[theStorminMormon]

nformation is nothing but a different 'type' of object, and there's no reason there should't be ownership laws involved.

This is silly. There's a very fundamental difference between tangible goods and ideas. If you take my car, I have no car anymore. If you take my song, I still have it. So you have not deprived me of the song.

You can not deprive people of ideas by "stealing" them, and thus stealing an idea is different than stealing a tangible object.

So the reason that people can't take my TV is quite simply that then I will no longer have a TV. But if I start whistling my own invented melody and someone hears me and starts whistling it too, I haven't lost the melody. The wife example is silly. If my wife wants to have sex with some dude - much as that would suck for me - then I can't stop her. If she doesn't want to, then it's rape. Are you now trying to say that rape and theft are the same thing?

What's the difference between a TV rolling off an assembly line, and a novel written by some guy in his basement? None. Both were produced by hard working people (and some robots in the case of TVs).

Books, as in the physical objects, are not copyrighted. It is the contents of those books - which are intangible - that are copyrighted. I suggest you do some reading: http://en.wikipedia.org/wiki/Intellectual_property

But crying for the complete abolishment of copyright is sheer stupidity and insanity all rolled into one.

It saddens me that I agree with you on anything.

Re:Tag this:

[theStorminMormon]

Why must we "strike a balance" in copyright law?

I get the impression that you don't understand what copyrights are. If you have a copyright to an idea you do not own that idea. Ideas can not be owned. Period. Copyright laws and patents do not contradict this common sense notion. A copyright law does not grant you ownership of an idea. It grants you ownership to exclusive rights to control the distribution of that idea for profit.

This isn't just a matter of pragmatics (although that comes into it to) but also of ethics. If it takes me 1,000 hours to write my novel is it fair that anyone else can come and copy it and sell it? I invested the work, but if there's no copyright law then they can reap the benefit. Most people agree that this is not fair. So artists deserve *some* rights.

On the other hand if I spend 1,000 hours writing a book does it makes sense that I can then sue someone for quoting a passage from my book? Or that I can stop people from reading my book if I don't want them to? Imagine an author wandering around a book store "I don't like the looks of you, give me that book back. Get out." So clearly giving artists *all* rights is also not fair.

Since both extremes - no rights and all rights - are not ethical than if you want to find the ethical then by definition you are looking for something in between. You are, as it were, attempting to strike a balance.

Do physical property laws "strike a balance"? No, what's mine is mine, and what's your is yours, period.

This is false. Both taxes and eminent domain demonstrate that we do, in fact, strike a balance in this case as well. If you own a house on land the country needs for a road, then you don't get to say "what's mine is mine". The gov't knocks your house down (and pays you for it).

I disagree. The total quantity of works produced might decrease, but I think the variety would actually increase.

It's called the tragedy of the commons. If everyone can profit from an copying from an invention as much as from inventing the invention, then everyone has the incentive *not* to be the one that does the hard work of inventing. This is a more fundamental law than your liking for indie music. Why should there be a larger variety of music if people are being paid less to make it? It's not as though anyone is forcing people who are willing to make music for free not to make it now. So right now everyone that is willing to make money for free makes it, and also people who need or want to get paid make it. You take away the option to get paid, and only the people willing to make music for free will make it. How are fewer artists "more variety"?

Re:Tag this:

[theStorminMormon]

Thousands of years without every man, woman and child owning a high speed "printing press" in their homes

This is actually a very historically apt example. From wikipedia:

Movable type

The printing press brought the possibility of compensation for literary labor. Very speedily, however, the unrestricted rivalry of printers brought into existence competing and unauthorized editions of various works, which diminished prospects of any payment, or even entailed loss, for the authors, editors, and printers of the original issue, and thus discouraged further undertaking. Any person with a press and some skills could use movable type to publish books and other items. Scribes and scriveners were no longer needed.

Protection for the authors and their representatives was sought through special privileges obtained for separate works as issued. According to Elizabeth Armstrong (whom the Curators of the Bodleian Library awarded the Gordon Duff Prize in 1965 for her essay on Printers' and authors' privileges in France and the Low Countries in the sixteenth century), "The republic of Venice granted its first privilege for a particular book in 1486. It was a special case, being the history of the city itself, the 'Rerum venetarum ab urbe condita opus' of Marcus Antonius Coccius Sabellicus" (page 03). [ Armstrong, Elizabeth. Before Copyright: the French book-privilege system 1498-1526. Cambridge University Press (Cambridge: 1990). ] "Venice began regularly granting privileges for particular books in 1492. http://en.wikipedia.org/wiki/History_of_copyright_ law#Earliest_copyright_disputations

As soon as the means for cheap reproduction existed, the need for copyright was seen. Copyright laws date back to the 15th century. I'm not sure what "greatest works of time" you were thinking of, but I'd wager at least some of them actually came into existence *after* the printing press (and therefore were probably copyrighted at the time) and in any case the point remains: before easy reproduction there was no need for copyright law, afterwards there was.

Re:Tag this:

[theStorminMormon]

In fact that's where the money is supposed to be made, in the performance of work, not the distribution of reproductions.

So... how many novels have you seen performed? Not adaptations of novels, but actual novels? There's an argument to be made that copyright is less important for the performance arts, but in that case you're not merely selling the work, but the performance of the work. So it makes sense. But a lot of art is not performed. Just tough look to them? I suppose Terry Pratchett should just start writing novels live and charging $10 an hour to watch him work?

I don't care about publishers and distributors. They're just ripping off the creators like the railroad monopolies did to the farmers, and they can all rot.

They are *now*, but that's because now any 8 year old with a CD can make perfect digital copies of most forms of art. Music, video, or text. But publishing companies were invented when the means of publication and distribution were much, much more expensive. The plunge in the cost of publication and distribution is a relatively new thing, historically.

The publisher's teat is running dry. They are a fifth wheel trying to put more laws on the books to maintain the artists' dependence on them.

This is a drastic overstatement. One of the most important things publishers do is marketing. And as Google shows, that's still an industry that is thriving today. So publishers aren't dead yet. Furthermore, not all media is digital yet, and that means there's still a reason for publishers to exist. I want a hardback copy of Harry Potter and the Deahtly Hallows, not a .pdf.

Why should I subsidize a full time artist with corrupt law that only promotes hoarding and speculation?

This is just silly. Copyright law doesn't force you to subsidize anybody. If you don't want to subsidize J. K. Rowling, don't buy her book. That's fine with me. Find an author that is willing to give their work away. But I'm happy to give J. K. Rowling her money. And if she has worked out a deal with Scholastic to print the book, then I'm happy to give them their cut. And if Borders is kind enough to take shipment of the books and provide nice displays for me to peruse, than I'll gladly fork over some cash to them as well. Conveniently enough for me, all that money is bundled into one transaction.

Copyright doesn't force you to pay money at all. It just gives authors the right to set limitations on their work. If you don't like the price they set: don't pay. You don't have some inalienable right to enjoy art you didn't create for free.

There is no reason a reproduction of work already performed should fill your wallet. Make your contract, perform the work, get paid, and walk away. That's all you or anybody else is entitled to.

Did you really write this entire thing without ever once stopping to think that not all art is performance art?

Re:Tag this:

[theStorminMormon]

Maybe if every teeny bopper whore who wants to pout at a camera, sing to an over-produced track and get paid millions for it suddenly can't make money because the artificial monopoly supporting such a business model vanishes, we wouldn't be innundated with mindless crap. Maybe we would all be better off if the only people who made art were the ones that were passionate enough to make it without thought of getting paid.

This strikes me as really funny. Like it or not, the reason that pop songs like this keep getting made is because people by them. It's actually relatively democratic. I mean, you might not like the music. I certainly don't care for it. But you can't argue with the fact that a lot of people like the music enough to pay money to get it.

But rather than the democratic ideal you'd rather go back to a system where a few mega-rich fat dudes literally decided what got made. You honestly think that would be an improvement? You know what - evenif the mega rich fat dudes were all my friends and made sure that all my favorite screamo bands and prog rock bands stuck around forever, I'd still be deeply troubled by the fact that in general people had to buy music that was decided for them by a few rich people.

Consumerism lets people vote with their wallets. The trouble is, as you've observed, they tend to make stupid decisions. Still, I'd rather take the stupid masses than a tyranny any day: even when it comes to music and not politics.

Re:Tag this:

[daigu]

A copyright law does not grant you ownership of an idea. It grants you ownership to exclusive rights to control the distribution of that idea for profit.

IANAL and neither are you. For one, you are confusing patents and copyrights. Copyright is an artifical monopoly granted by the government in respect to a particular expression of an idea. It is not possible to copyright an idea - as you would have learned if you had checked Wikipedia before posting.

Copyright law is not a matter of ethics. It is simply law and public policy. As the Constitution puts it: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." You'll notice that the focus is on progress - not because it is "right" from any moral perspective.

Further, there is a problem in your premises. Specifically, you aren't using your imagination or referring to historical precedent where copyright did not exist, yet creative works were produced. The University system and patronage are historical examples. I can imagine cooperatives that could provide a basic standard of living for artists and other possible formulations that you probably haven't considered. Copyright is only one way to skin this particular cat.

It's called the tragedy of the commons.

Tragedy of the commons is actually based on scarcity. The problem you have is that you are assuming that creative works are fungible. Here's the example that shows the flaw in your reasoning. Suppose The Beatles decide to release all their music and make it all public domain. Now, since all their music is available - according to your reasoning, no one will make any music anymore. No need to create derivative works. Why bother because The Beatles is freely available right? Wrong. People like to make music. They like to make new sounds/songs, listen to new sounds/songs and so forth. The fact that The Beatles catalog is freely available means I have a treasure trove of sounds to incorporate into my own music - and great music to listen to as well. The tragedy here is that in reality the Beatles catalog is not available in the commons. If it were in the commons, no tragedy of the commons would occur due to its available. Nor would the tragedy of the commons come into play if every copyrighted piece of music were available and copyright were abolished - any more than it would be for individual artists. Also as most musicians know, your money comes from touring - which isn't about copyright. You need to work on this argument.

Why should there be a larger variety of music if people are being paid less to make it?

Because most people making music don't make music for money. Even among those that do, most don't play solely music to maximize their profit.

Re:Tag this:

[theStorminMormon]

For one, you are confusing patents and copyrights

No, I'm not. I'm speaking in general terms about intellectual property - both patents and copyrights (throw in service marks and trademarks if you like, but I think those are kind of a different idea). Patents and copyrights, however, are essentially the same thing. You work hard to create something intangible. I said "idea". You could substitute "invention" for patent "work" for copyright: but the principle is the same. Provide a temporary monopoly so that the creator can recoup costs and make a profit. For copyright on a song or patent on a new drug it's the same general concept.

You don't have to be a lawyer to understand the general law. In fact, I'd suggest that a philosopher is probably better at the generalities.

Copyright law is not a matter of ethics

On the contrary, all law is ultimately a matter of ethics. I encourage you to try and show me otherwise. But if you don't believe me (and I'm sure you don't) try answering the question "why should we have laws" without recourse to ethical values: implicitly or explicitly.

Tragedy of the commons is actually based on scarcity.

You are correct. I referenced the wrong economic concept. My mistake. The actual problem I referred to, however, is dead on. The example is more clear with patents, but the idea is the same. It takes a lot of money to research new drugs. It's extremely cheap to actually manufacture a lot of them. So if companies A, B, and C are pondering whether or not to design drug X, each has to weigh whether or not they can recoup their investment.

In a world with no patent law each benefits the most if someone else does the research, and loses the most if they do the research and everyone else copies. So it's more like the prisoner's dilemma than the tragedy of the commons. (Again, my mistake for citing the wrong example.) So less research would get done.

Does this work for music, novels, and other works of art that can be digitally reproduced as well? Of course it does. You incur a cost to create the work - anyone else can copy the work for free.

You see that's the flaw in your counterexample. Everyone in your hypothetical scenario is an artist or a listener. You've got the Beatles, and you've got other artists who might want to use their stuff to make more art, and you've got listeners. So you're not really talking about the possibility that someone might take every single song the Beatles published, stick it on a CD, and sell it themselves.

Of course the Beatles would probably be immune to such an attack, but any smaller musician who wants to make money by distributing their work is vulnerable to a larger company with far greater resources swooping in and making exact and entire copies of the music.

So there are only two possibilities. Either no one makes any money from music (in which case there's no motivation for such predatory copying) or the only people who make money from music are not creators of music but distributors who now have to incur no cost to copy and sell music from artists.

If you really think a world where artists can get by on donations and charity is a good idea, I can't argue against you. I just don't think putting all artists on public welfare is a good idea. Failing that, copyright law of some sort is essential to enable them to recoup costs from creating these works. And these rights must be transferable in order to have genuine worth.

Keep in mind that I'm not arguing in favor of current copyright law. It's too strict. We need to allow for more reuse in the form of sampling to create new works. And I'm *certainly* not arguing in favor of DRM. There's a distinction between saying "we should have some copyright law" and saying "we can use DRM to enforce that copyright law". How you enforce a law is not the same question as what law to have.

Also as most musicians know, your money comes from touring - which isn't about copyright

Analysis from the Future

[CheeseburgerBrown]

Optimistic: one day our grandchildren won't believe us when we tell them how ridiculous the state of intellectual property law was back in the early 21st century.

Pessimistic: we won't be allowed to tell them, for copyright reasons.

Re:Analysis from the Future

[iminplaya]

I just can't wait to see when Disney loses rights to their very early stuff, that will be a laugh and a half.

That won't happen. They will ask for and receive extension after extension.

Re:Analysis from the Future

[NeoManyon]

For an interesting and somewhat chilling read on what the future might be like if we follow the pessimistic path then read "The Right to Read" by RMS. http://www.gnu.org/philosophy/right-to-read.html

Here's the beginning:

For Dan Halbert, the road to Tycho began in college--when Lissa Lenz asked to borrow his computer. Hers had broken down, and unless she could borrow another, she would fail her midterm project. There was no one she dared ask, except Dan.

This put Dan in a dilemma. He had to help her--but if he lent her his computer, she might read his books. Aside from the fact that you could go to prison for many years for letting someone else read your books, the very idea shocked him at first. Like everyone, he had been taught since elementary school that sharing books was nasty and wrong--something that only pirates would do.

Re:Analysis from the Future

[voice_of_all_reason]

sharing books was nasty and wrong--something that only pirates would do

Somehow I doubt there was ever a pirate sitting on the deck of his vessel in the early evening, sipping his tea and perusing The Lay of Leithian in his off-hours from pillaging the nearby towns.

Re:Analysis from the Future

[Lord Balto]

As I suggested elsewhere on this thread, why should any corporation be allowed to own the creative work of real people for decades into the future? Why can't they simply be limited to first use rights or first year rights or some such limiting factor and the rights then automatically reverting to the creators of the work? This would allow the corporations to make money and at the same time preserve the rights of the *real* creative artists the law is *supposed* to be protecting.

Hi From Google!

[ack154]

I think Google just drew a big middle finger over the Viacom HQ on Google Maps...

Groklaw

[SnowZero]

Well, it looks like Groklaw will now have something to cover after the IBM-SCO lawsuit is done. Hopefully this one won't take 4+ years to be decided.

I was on the Mad TV site...

[iPaul]

And clicked on the "you tube" link from the Mad TV site only to find the content had been pulled from You Tube and Mad TV's account was suspended. (I don't know if this is still the case, as this happened a few days ago). I assume Mad TV had originally posted the material, since the link to You Tube was from the Mad TV official site. Anyway, that's not the only one I've come across where legitimate content, posted by the right hand of one company, was ordered to be pulled by the left hand of the same company. I think that You Tube represents a significant opportunity to get Viacom's content out there for people to watch. It's a shame they can't come to some sort of agreement. (And it's a shame Viacom doesn't like the law they helped pay for).

Re:I was on the Mad TV site...

[beckerist]

Considering the first season of The Colbert Report was essentially DRIVEN by YouTube hits (think: Green Screen Challenge!), I think Viacom should be THANKING the GooTube!

Re:This requires some translation:

[Atlantis-Rising]

It doesn't work that way. If it did, that loophole would already have been exploited dozens, hundreds of times.

Re:This requires some translation:

[Orange Crush]

This translates to "Drop your lawsuit or you're guaranteed to lose. Besides, our market cap is much bigger than yours so we can simply buy you to make this go away. Na na na na na na!"

Nah, Google doesn't want Viacom to drop the suit. Google was gunning for this fight and they want Viacom to come at them swinging hard. It's a fight Google is likely to win, but it has to be a fight otherwise it won't resolve anything and the rampant DMCA abuse will continue.

Hee hee, go Google.

[Stumbles]

I think Google's response is spot on and equally important highlight's some of the ineptness that exists in the media industry. How is it that Viacom cannot adequately identify their own material? That's just astounding. And just how do they expect someone to know if it is their material? What bunch of buffons. If I were a stockholder of that company, I would be grilling the CEO and boardmembers about just exactly why they are not doing their jobs and keeping track of property the company owns.

Translation

[indros13]

Viacom to Google: *snarl*

Google to Viacom: *smack*

Viacom: *whimper*

If Viacom can't do it, they shouldn't expect ...

[Augusto]

... others to do it.

It has already been shown that ifilm contains material which they don't own the copyright. Viacom, can't police that material, why should anybody expect google to do what the originator of the lawsuit is crying about?

And google does have a way to report questionable material, you hit the "flag as innapropiate" and choose "Other terms of use violation". In addition the same button has a link for copyright owners to object to the material. That really seems fair enough to me.

The only technical solution would be to filter words, which is a stupid alternative. As I may want to upload parodies of "Steve Colbert" instead of actual video from his show.

Re:After reading both letters...

[Atzanteol]

Sure, it may be easier for Google. But it's not their responsibility to enforce the copyright of others. Viacom is trying to enlist the world in their search for copyright infringement.

I sincerely hope nobody from the MPAA, RIAA, or Viacom sees your post. "Well your honor, it's easier for everybody surfing the web to find our content and notify us if the find something infringing. So if you *see* copyright infringement and don't report it then it's a crime!"

Re:After reading both letters...

[Mishra2002]

It is far easier for Youtube to control what's on their site but how can they tell if something is copyrighted? You tube is now supposed to be intimately knowledgeable about the copyrighted material of every corporation on earth? With the recent fad of fan made commercials how can yYutube distinguish between a legitimate fan made commercial and a parody? A copyright holder can identify infringement report it and have it removed. To expect youtube to have some magical AI script that detects copyrighted files is lunacy.

Google flicks off Viacom and says...

[TimeForGuinness]

Did you hear what I said Viacom? Or shall I turn it up for you?

Re:After reading both letters...

[2short]

"Basically whose responsibility is it to identify... "
Viacoms.
"...and remove..."
YouTubes.
" infringing copyright material?"

This isn't up in the air, debateable stuff; it's spelled out perfectly clearly in the law.

"I'm not a lawyer"
Clearly.

The Real Problem

[Lord Balto]

The real problem with copyright law is that large corporations are allowed to possess them. This is just another example of the much larger problem of large corporations being allowed to do anything an individual can do. Even in your example, the author doesn't necessarily own the copyright. Often, it is the publisher that does so, which is good if a lawsuit is required, but it limits the author's future right to do what they wish with their work. In short, why is a company that has not produced anything creative allowed to take advantage of a legal right that was supposedly enacted to protect creativity? Perhaps these corporations should only be allowed to possess limited copyrights that only extend to the first production of the work in question, with all rights thereafter reverting to the artists who created the works. I have no absolute solutions, but I really think this needs to be looked at from the point of view of what would actually increase creativity in the real world and not just in the corporate bizarro world.

Re:The Real Problem

[gcallow]

Perhaps these corporations should only be allowed to possess limited copyrights that only extend to the first production of the work in question, with all rights thereafter reverting to the artists who created the works

Already can be done - licensing. Artists aren't obliged to sign their copyrights away - they can instead let somebody license the work from them with whatever restrictions they feel fit to place upon it.

The problem is, historically, the cost is distribution. To make any money from your copyrighted work you need to distribute it, distributing it means going to the big media companies and they'll only distribute if you hand over the copyright, not license it from you.

The internet, computers, podcasts, YouTube and the like are moving the distribution cost lower and lower. Hopefully we'll get to a point soon where artists realise they aren't beholden to some of the current companies to get their works out and make a reasonable sum of money from it.

Re:The Real Problem

[Attila Dimedici]

Walt Disney is a large corporation. It is a large corporation because it holds the copyrights to the works of.....Walt Disney (among others). Walt Disney (the guy) was able to realize many of his dreams because he created Walt Disney (the company) and gave them the rights to his works. Yes, he probably took advantage of some other creative people. However, the problem isn't that he gave the rights to his creative works to a corporation. The problem is that he's been dead for some time now and the corporation still has exclusive rights to his works. The problem with copyright law (as several others have posted here earlier) is that it lasts too long. IMO copyright should last for the lifetime of the creator or 75 years from the date of creation, whichever is longer. That last may be too long, or not long enough. A case can be made for anywhere from 50 to 100 years. However, the two important things about copyright duration should be lifetime of the creator and time from date of creation...I believe that current law is length of time from death of creator.

Re:The Real Problem

[theStorminMormon]

The real problem with copyright law is that large corporations are allowed to possess them.

In short, why is a company that has not produced anything creative allowed to take advantage of a legal right that was supposedly enacted to protect creativity?

A couple things to note. First of all it's interesting that you qualify corporations with "large". I take it you understand why corporations are so important to modern business. What they do is limit the risk of any investor to only their investment. In other words if you put $1,000 into a corporation and the corporation gets sued and loses all it's assets and still owes money, the creditors can't come to you for more cash. Without this guarantee of safety, investing in corporations would be even more risky, and only the rich could do it (only they could run the risk). So it's actually a powerful democratization effect to have corporations exist as legal entities because it protects their investors.

However you're right that when corporations get really big it's hard to make sure that the people running the corporation have the interests of the stakeholders at heart. In fact, it's hard to even define who the stake holders are. In America the stakeholders are the shareholders. In Europe the stakeholders are also the company employees (even if they don't own stock). In Japan it's company employees and also other businesses (because in Japan companies own each other's stocks at a much higher rate). In none of these cases is the stakeholder the general public. So trying to figure out how the general public can none the less impose some penalties on corporation decision makers for bad decisions is an extremely, extremely tricky problem.

I agree with you in principle that it's a problem, but I think the real fundamental problem isn't about copyright, it's about how to design corporate governance structure so that the individual decision makers in corporations are responsible for the decisions the corporations make. This is harder to do than it sounds.

Re:The Real Problem

[skubeedooo]

In all of this, you have to remember that it is the artists that decide to license their works to the label. They trade the license to their creative work in exchange for advertising, production and cash. Decreeing that large companies aren't allowed to hold copyright is effectively saying that bands aren't allowed to sell their main asset. I can't see how government disqualifying the highest bidder is going to help them.

When the government starts dictating who can sell to who, it usually ends up worse for everyone concerned. In this particular case, if a label can't get access to a significant future revenue stream, then they are not going to stump up the cash for production, advertising and so on. Every limit you place on what the corporation can do with the rights gets instantly and automatically translated into a limitation on how much the artist can get paid. In your example, if a company is willing to pay £100,000 for the rights to all productions, then it might only be willing to pay £20,000 for the rights to the first production. Is this a better deal for the musician? Well, it might be, or it might not be. I'll let him figure that one out - he doesn't need me, or government, to decide for him.

To answer your question about why, it is simply about distribution of labour. Labels are good at marketing etc, artists are good at creating music. Artists pay for the labels to promote them by giving them the copyrights. At the moment it is claimed that artists get a bad deal - if it is true, then it is time for the artists to start wising up, not for the government to introduce new populist laws.

Why not? Because it's overkill

[paladinwannabe2]

Like most people, I sometimes go over the speed limit while driving to work (sometimes by as much as 10 miles per hour!) I'm sure that if the Federal Government started arresting people for speeding, most people (myself included) would speed a lot less.

Of course, any elected official trying to 'crack down on speeding' by tossing speeders in jail wouldn't last long in office. When you give ridiculous punishments for minor offenses, you just breed contempt for the law (not to mention annoy everyone but special interest groups).

Re:It's a law enforcement issue

[Clever7Devil]

Yeah, but why would the small independent entertainer ever want to do this? YouTube, P2P File Sharing, hey even MySpace Music and Pandora (Though the last two haven't been sued yet AFAIK) all are great ways for these lesser-knowns and amateurs to get their material in front of people. I think the argument that anyone, besides the RIAA and Metallica, actually sees this as a problem is long stale. I was at a Stephen Lynch http://en.wikipedia.org/wiki/Stephen_Lynch_(musici an)/ concert last month when he made a revealing (to me at least) statement about a song he was not going to perform, "Buy the album, go to iTunes, download it off LimeWire, I don't give a fuck." His albums were noted by Apple as two of the 100 best-selling Independent albums on iTunes in 2005. These artists don't want to send the cops after people who like their music, they want those people to continue liking it so that they will pick up albums and go to shows. Artists make more money touring than they do with album sales by a hefty margin. You can't download the front row.

Re:Oh, for God's sake, you two.

[HikingStick]

You're wrong here. It was absolutely necessary for Google to make a public stand on this issue. Google's reputation was sullied in the public eye by the news coverage of the pending litigation. By writing the open editorial piece, Google is taking a firm and purposed position in defense of its reputation. You can't believe that the average citizen is going to be following this via Slashdot, much less by looking at the public record of the legal precedings.

Besides, such editorial comments have been a part of journalistic history in the United States. They are often one of the few things that keep traditional media outlets mildly interesting.

As a citizen, it is important for me to know when a corporation is trying to hose me through its actions against other companies. IANAL, but I do have experience as an educator, and copyright has a tremendous impact in that arena. Google's arguments are spot-on when it comes to who is responsible for identifying infringing material. Perhaps Google's letter will inspire some citizens (those targeted by the RIAA, for example), to challenge the settlement offers and legal threats that they currently swallow without a second thought. The fact is this: unless you stand up to a bully (preferably in front of witnesses and the bully's lackeys), the bully will continue to steal your lunch money.

Re:After reading both letters...

[tinkerghost]

Basically whose responsibility is it to identify and remove infringing copyright material?

The DMCA safe harbor provision declares it to explictly be the owner of the copyright who must object & request the takedown of the material. In fact, it has always been the responsibility of the copyright owner to initiate any form of copyright complaint. There is no way that YouTube or any other content aggregate can determine if the material is:

1. copyright by a specific individual (Stephen Colbert posting a home video) vs copyright by a company (A clip from the Colbert report).
2. Permitted by the company (Any number of adds posted on YouTube by the add company)
3. Permitted under fair use (Yes it still applies)
4. Used under license from the copyright owner by the poster.

Given those factors, it is strictly the copyright owners responsibility to identify & request the removal of infringing material. YouTube in fact goes farther & uses a hash system to block the re-upload of videos it removes - in effect performing the pro-active filtering that Viacom wants.

Real issue here

[cdrguru]

There are a bunch of side issues here, like what is fair use when considering a video clip of some duration. But there is one big issue:

Entity A has a service by which lots of stuff gets picked up and made available to others. Some of this is owned by other people and Entity A has no rights to it at all. Is it Entity A's responsibility to ensure they do not collect such material, or is it the owner's? DMCA pretty clearly says it is the owner's and this works on a small scale pretty well.

But when Entity A is the size of Waste Management and they "accidently" pick up every car in your neighborhood to sell them at auction, is it necessarily a good move to say that every car owner has to sue them individually?

YouTube is a vacuum cleaner of mammoth proportions and is certainly capable of sucking up whatever content there is to acquire through the dillgent efforts of anonymous contributors. There are vast similarites with Napster here - sure there is a lot of non-infringing content but also lots of infringing content as well. Grokster pretty much said the service can be held liable for copyright abuses of its users.

I don't think this is at all clear cut. Yes, Viacom probably could do a better job at identifying infringing material and a compromise might be to enable Viacom (and others) to have easy access to recently-uploaded materials for such identification purposes. But in no way does YouTube (or anyone else) get to say they have no responsibility in the matter at all.

Re:Real issue here

[Todd Knarr]

The distinction is that YouTube isn't vacuuming up the content. Individuals are posting it there. YouTube simply provides the hosting. Not everyone can afford to run their own co-located servers to host their own videos, and the safe-harbor provision of the DMCA recognizes that the companies simply running the servers should have a way of putting the responsibility for what users do on the shoulders of the users.

This is much akin to the way UPS, FedEx and the USPS work. They move packages from point A to point B. If they were directly liable for everything that might be in those packages, they'd be forced to open and inspect every single one. They couldn't operate like that. Moreover, people who use them couldn't work like that. Companies and individuals need to send confidential documents around with some confidence they won't be opened and read by random people at the shipping company. So the law says that it's the shipper who's liable, not the shipping company, unless the shipping company has some reasonable grounds to believe, just by looking at the outside of the package, that there's something wrong. This lets UPS/etc. provide service to everybody without you having to let them see every bit of everything you'd like to ship through them and without having to worry about being sued into oblivion just because Joe Moron decided to use them to send death threats to his boss and didn't mention it to them.

The DMCA safe-harbor provision is modeled after that. A hosting company is responsible for providing hosting. They aren't responsible for standing over every user's shoulder every second watching and approving/vetoing every single thing the user does with the service. Responsibility for what the user does falls first on the user, as long as the hosting company takes a hands-off approach.

Re:If Viacom can't do it, they shouldn't expect ..

[TubeSteak]

It has already been shown that ifilm contains material which they don't own the copyright. Viacom, can't police that material, why should anybody expect google to do what the originator of the lawsuit is crying about?
...
The only technical solution would be to filter words, which is a stupid alternative. As I may want to upload parodies of "Steve Colbert" instead of actual video from his show.

YouTube currently has a filtering system in place.

They licensed technology from AudibleMagic.
(MySpace has also licensed the technology for filtering.)

YouTube only pre-filters content for media companies who have entered into a licensing agreement with YouTube. The company gives YouTube hashes of their copywritten works & YouTube plugs those into their database. Viacom briefly mentions all this in their editorial & in the legal complaint (paragraph #7 & again further on).

Anyways, maybe the Judge will tell Viacom to license AudibleMagic's technology and use it on their own site... Who knows? But the main thrust of your argument is based on the claim that GooTube can't filter and you're wildly wrong. Don't worry though, lots of other people have been making that same argument, wrongly of course.

Re:DMCA safe harbor does not apply to Google

[russotto]

The DMCA FAQ is not quite precise enough here.

The actual words used in DMCA 512(c)(1)(B) are

"does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and"

Google does not lose the safe harbor by making money off of YouTube; if they did, the DMCA safe harbor would be vitiated. The benefit has to be _directly_ attributable to the infringing activity; an indirect benefit like "more people come to the site, and thus see the ads, thus raising revenue" does not qualify.

Re:DMCA safe harbor does not apply to Google

[russotto]

Not so incredible. Typically, every word in a law is assumed to have meaning. In this case, there's a rich history of "vicarious infringement" case law which Viacom could try to bring to bear to show that Google did in fact financially benefit from the presence of Viacom's copyrighted material. That's all precluded by that word "directly", as "vicarious" and "direct" are essentially opposites in that sense.

Corporate flame wars

[Vaibhav_Locke]

The flame war has begun. Soon there'll be WTFNOOB and DIAF letters sent to the Washington Post

YouTube doesn't need Viacom anyway?

[tajmahall]

Viacom's content apparently isn't what continues to drive YouTube. YouTube's traffic doesn't seem to have been affected much by Viacom pulling its content, though it may take a while to tell. Offhand I'd say whatever profit YouTube may have gotten from of copyrighted content is done with. The site is now the established video vault, and it seems to be getting along fine (so far) without Jon Stewart.