I was invited to appear on today’s NewsHour with Jim Lehrer on PBS today to discuss Viacom’s lawsuit against YouTube, but couldn’t make it. I think I would have been partnered with Susan Crawford, an assistant professor of law at Cardozo Law School, whom I’ve admired for years as a reformer in the field of intellectual property (and whom I’ve written about on Darknet.com).
But I would have taken a very different view than Susan proferred on today’s newscast. (Here’s an mp3 of today’s segment.) Susan focused on whether YouTube is protected under the Digital Millennium Copyright Act, and said that the lawsuit was "surprising" (no, it wasn’t) and that Google and YouTube have been "quite active in responding to notices from Viacom" (certainly beside the point, when thousands of additional infringing videos are posted every day). "What YouTube is doing is exactly consonant with the statute," she said. "This is not a pirate site."
Jeffrey Brown cited Napster as a precursor, and that’s the parallel I would have made. I used Napster, and I use and like YouTube, but both seemed to me to not only straddle the line of copyright infringement but to invite infringement. Here in Silicon Valley, YouTube is held up as an icon of disruptive technology, its founders toasted and lauded, but at the same time few of us doubt that its popularity was built on the basis of stolen professionally produced content from the studios. (Susan suggested otherwise.) Meantime, as many as 300 other video hosting sites manage to police their sites to remove infringing videos uploaded by users. Others do not, of course.
Reports in the press have surfaced that Google licensed Audible technology to identify infringing videos, but has been slow to activate it, though the activation process takes only days. Meantime, YouTube has not made a point of suspending members who repeatedly upload copyrighted content. (If they’ve done so, they’ve been quiet about it.)
I wrote in Darknet that media companies need to embrace the new digital realities and offer people an easy, user-friendly way to consume and use media online. But I also drew a line at pilfering others’ material without their buy-in. It’s up to Viacom to decide how it wants its content displayed. If it wanted to do a deal with YouTube, it would have, and still can. I don’t believe for a moment that by filing a lawsuit, Viacom is closing the door on all the business and distribution models that the new digital realm has to offer.
Let me be clear: I don’t want Congress to revisit the DMCA and tighten the screws on users and hosting sites that stretch the boundaries of copyright law. But I do think Google has made a mistake in relying on the DMCA’s safe harbor provisions rather than aggressively preventing the infringement from taking place in the first place. It would cost money, yes — but far less than the money it will cost to defend a billion-dollar lawsuit.
This will be a fascinating case to watch.
More:
News.com: Copyright quagmire for Google and YouTube
Economic Times: Viacom gets support from rivals in Google-YouTube war.
CrunchGear: Viacom’s Lawsuit Against YouTube Has No Chance of Succeeding.
Plagiarism Today: Why Google is in copyright trouble.
JD Lasica, founder of Inside Social Media, is also a fiction author and the co-founder of the cruise discovery engine Cruiseable. See his About page, contact JD or follow him on Twitter.
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