Why is it that politicians keep using music in commercials without getting permission first? No matter what you think of the copyright issue (and we'll get to that), it's amazing to me that any politician doesn't recognize that if he or she uses a song without permission, and the musician doesn't happen to like that politician or that politicians party or policies, that a whole news cycle will be devoted to that musician being able to bash that politician. The latest is Florida Governor, and now Senate candidate, Charlie Crist, who is being sued by former Talking Heads front-man David Byrne for one million dollars. This is similar to Jackson Browne's lawsuit against the McCain campaign (though, in that case, the commercial wasn't actually by the campaign, but a local party group).
Byrne keys in on the copyright issue, but seems to jump back and forth between the moral issue and the copyright issue without realizing they're not quite the same thing:
The suit, he adds, "is not about politics...It's about copyright and about the fact that it does imply that I would have licensed it and endorsed him and whatever he stands for."
But, of course, in the US, we don't have moral rights on songs like this. While it's true that the campaign might need to license it for a commercial, Crist could easily have used it at campaign rallies (assuming the venue paid performance rights licenses) and Byrne could do nothing to stop him, no matter how upset he was that some might think he endorsed Crist's positions.
That said, you could potentially make a pretty strong fair use case in such a commercial. It would be for political, not commercial, purposes, and it's only a snippet of the song. Also, it's not like the commercial is going to replace the market for the actual song, so the effect on the market should be minimal (or even potentially positive, if it reminds people of that song and gets them to go out and buy it). That said, I would imagine Byrne's response is that it could potentially harm the market in a few ways, including the negative association of the song with a campaign, and (more convincingly) that it could potentially harm the market for Byrne to license the song to other commercial advertisements. I can see the argument either way, though I (not surprisingly) would lean towards this being fair use.
Even so, though, whether it's fair use or not, you would think that after so many examples of this sort of thing backfiring on politicians, that they would learn to check with musicians to make sure they support the politician before using the song, just to avoid the easy headlines of "big famous musician suing politician x."
Copycense kicked off an interesting thought exercise, in questioning if, instead of trying to carefully define what qualifies as "fair use," we might be better off trying to define what constitutes "unfair use." Of course, some copyright system supporters might note that copyright itself defines what unfair use is -- and it's pretty much any unauthorized reproduction, distribution, performance etc. of a covered work. In that world, "fair use" are the narrow exceptions.
But there's a strong argument to be made that that's wrong. The purpose of copyright -- as we remind folks every so often -- was set about to "promote the progress" with the main focus being on better encouraging education through knowledge transfer. So, perhaps the case can be made that rather than focusing on narrow exceptions to copyright law, we should go back to realizing that copyright is the exception and the public domain is the rule. From there, the thinking is exactly right. If the goal of copyright is to promote the progress of science and the useful arts, then let's focus on what should be considered "unfair" and build from there, rather than starting with a wall that says "everything is unfair" and here are a tiny few exceptions.
All along defenders of ACTA have insisted that it will not change US copyright law. In fact, the argue that, since it's an executive agreement and not a treaty, it cannot change US copyright law. However, the devil is always in the details, and the details are not good. Earlier this year, we noted that the real problems were not in what was included in ACTA, but what was left out. That is, ACTA technically includes stuff that is (mostly) already in copyright law... but leaves out all sorts of exceptions and consumer protections. On top of that, some of what it seeks to do is to "lock in" areas of copyright law that are still very much in flux -- such as aspects like "inducement" that have only recently been determined by case law, but have not been discussed or reviewed in Congress itself. ACTA would prevent such changes, because if Congress later decides -- for example -- that it did not intend for there to be an "inducement" standard for copyright infringement (as the courts have created) it would not be able to do so because of ACTA.
With the official draft of ACTA finally released, Jonathan Band alerts us to a filing (which I'm guessing he played a large role in drafting) from the Library Copyright Alliance (along with CCIA, CEA, NetCoalition, EFF, Public Knowledge and a few other groups) that carefully and with great detail highlights the many serious problems with the released ACTA draft, detailing how it is not, in fact, in line with US copyright law, and how at different points it seeks to lock in areas of the law that are still very much in flux. You should read the whole thing:
It notes that the "official" version leaves out what countries are supporting what -- and points out that there are certainly parts of the text that are still up for debate that clearly go against current US copyright law. However, with many of those, the letter gives the USTR the benefit of the doubt that it will not agree to those phrases that are clearly outside the scope of US copyright law. Instead, it focuses on the parts of the released text that do not appear to be in dispute or negotiation any more, but which still appear to go against current US copyright law:
These comments will focus on the language in the Consolidated Text that we
believe the U.S. government has endorsed. While the United States probably could
comply with these provisions of the Consolidated Text without amending the U.S.
Copyright Act, these provisions are inconsistent with U.S. law in several significant,
troubling respects. The common thread of these inconsistencies is that the Consolidated
Text does not reflect the balance in U.S. copyright law. This lack of balance is at odds
with the Obama Administration's policy concerning balanced international copyright
law
The biggest concern comes in the form of statutory damages. Again, the text of ACTA does not currently go beyond US copyright law, but it does tie the hands of Congress on an issue that has constantly been debated (and over which there are some ongoing lawsuits challenging the legitimacy of current statutory rates). Locking those in would be a massive problem. When you then combine that with a lack of prominent exceptions to copyright law -- such as fair use (which is in US law, but not elsewhere, and is not required by ACTA), you create a situation that could present massive liability problems to US companies operating abroad:
Although the existing statutory damages framework has a chilling effect on
innovation and follow-on creativity, its negative impact in the U.S. is somewhat
mitigated by the existence of strong exceptions such as the fair use doctrine. Other
countries, however, do not have these exceptions. And the U.S. in ACTA has not
demanded the adoption of these exceptions. In other words, the U.S. seeks the export of
our strong enforcement mechanisms but not our strong exceptions.
This asymmetric export of our laws could be particularly harmful to U.S. Internet
companies as they attempt to expand their operations overseas. For example, U.S. courts
have treated the copying of copyrighted material by search engines as permitted by fair
use. In contrast, courts in Europe have found Google and other search engines liable for
copyright infringement for engaging in similar activities. If ACTA is adopted, and
European countries enact statutory damages, the potential exposure of U.S. search
engines will increase exponentially for conduct considered lawful in the U.S. They will
be liable not just for the actual damages they cause, but the level of damages set by
statute. Under current U.S. law, if a company is held liable under a direct or secondary
liability theory for infringements by thousands of consumers, the resulting damages (up
to $150,000 multiplied by thousands of works deemed infringing) could easily bankrupt
the company. Raising the possibility of similar, ruinous damages for conduct considered
lawful in the U.S. would simply hinder U.S. businesses' ability to operate abroad.
Along those lines, the letter notes that US law contains the right to decrease statutory awards in the case of "innocent infringement." Once again, this does not show up in ACTA, so we are, yet again, exporting the draconian parts of copyright law, without any of the important strong exceptions.
The letter also highlights the attempt in ACTA to not just lock in third party liability when it comes to copyright (a concept that has been determined by case law, but not in Congress -- and, in fact, was rejected by Congress when a law creating such liability was proposed a few years ago), but also appears to redefine third party liability, by expanding the definition to cover three different things, when current US law does not do that:
There are numerous problems with these two clauses of footnote 47. First, they
suggest that inducement is a different test from contributory infringement; that is,
they imply that there are three theories for third party infringement under
copyright -- vicarious liability, inducement, and contributory infringement.
However, Grokster makes clear that inducement is not separate and distinct from
contributory infringement.
And, of course, once again, it looks like in the issue of third party liability, ACTA makes it much stronger and removes the balance found in US copyright law:
Finally, article 2.18.3 lacks the balance present in U.S. third party liability law.
Article 2.18.3 makes third party liability mandatory. In contrast, exceptions to such third
party liability are only permissive: "the application of third party liability may include
consideration of exceptions or limitations...."
Notice the pattern? This does a variety of problematic things. First, it creates serious problems abroad for all other countries that sign onto ACTA, giving them all the limitations of copyright law without the important exceptions (which, it's been shown, are more important when it comes to economic activity). Second, should the US ever adapt its own copyright law, which has been going on pretty much non-stop, it locks in the limitations, but not the exceptions. That means that US law will only be able to take away the exceptions, but not ratchet down some of the problematic aspects of copyright law. That's downright scary.
And, of course, the rationale for all of this? It's based on studies that our own government now says were bogus.
It's even worse when you realize that if the point of copyright law is to promote the progress of science and the useful arts and there's no real evidence of a causal link between any particular copyright policy and greater societal progress, then it makes no sense at all to harmonize copyright laws in lockstep. Instead, it makes sense to do the exact opposite. It makes sense to let different countries experiment with different types of copyright laws so that we can actually build real evidence for what works and what does not work. Locking in a particular set of laws across much of the developed world, without any evidence as the basis is downright scary. It's faith-based policy making, pushed almost entirely by a small group of businesses who stand to benefit. It's an incredible shame that the USTR seems totally taken in by them.
Last year, we had written about how the CCIA had taken the same methodology used by entertainment industry lobbyists to claim how "big" the "copyright industry" was and applied it to the "fair use" industry, to show that it was actually much bigger than the copyright industry. Both numbers are clearly bogus -- which is effectively the point that CCIA was making. The point that is clear, however, is that if you accept the methodology that claims that "copyright" brings $1.52 trillion into the economy, then weaker copyright/exceptions to copyright (such as fair use) bring in $2.2 trillion. Lots of folks have been submitting the news that the CCIA just recently updated the report to show that we're now talking about $4.7 trillion contributed by the "fair use industries." Again, this number is bogus -- but it's main point is to show just how silly the copyright lobbyist's argument that copyright contributes $1.52 trillion to the economy is, because it uses the same methodology -- a point recently confirmed by the GAO.
So I have to admit that it's absolutely hilarious to see Patrick Ross, the head of "The Copyright Alliance" (one of a bunch of lobbying/marketing groups representing the entertainment industry) lash out at this new report, making arguments that apply equally to the $1.52 trillion number he's famous for touting every chance he gets:
"It is not helpful to policymakers or the public to pronounce sweeping arguments that defy logic," said Alliance Executive Director Patrick Ross. "In its report, CCIA identifies broad industries, suggests some entities in those industries occasionally engage in what some might call fair use, and then lumps all revenues and jobs in those industries into a newly coined "fair use" industry..."
But, as we've noted, that's exactly the same methodology that was used by the copyright industry to defend the $1.52 trillion number. The methodology is a joke. It identifies broad industries (including things like furniture!), suggests some entities in those industries occasionally engage in what some might call copyright, and then lumps all revenues and jobs in those industries into a newly coined 'copyright' industry...
Apparently, he's so wrapped up in this issue, he doesn't quite realize that the whole point of the CCIA report is to use the same methodology to show that if he and those who fund him are going to keep throwing around that $1.52 trillion number, they need to also note that the exceptions to copyright creates an industry that's even bigger. So I'm curious, Patrick, why is it "not helpful to policymakers" to use this number, when the number you throw out to policymakers all the time uses the same methodology?
We've written many times about the inherent conflict between free speech and copyright laws. Copyright law is an inherent restriction on free speech. The courts have tried to get around this with two tools: "fair use" as an exception to copyright and the "idea/expression" dichotomy, which is supposed to only allow copyright over the specific expression, rather than the idea (in practice, this is often violated -- such as in the recent decision to ban an unauthorized sequel to Catcher in the Rye). So, that mostly leaves fair use. However, many people have noticed that fair use is woefully inadequate in preventing basic First Amendment abuses.
Justin Levine points us to an interesting paper by David Olson, where he proposes beefing up the basically non-existent "copyright misuse" defense for situations where copyright is clearly being used to stifle free speech against the First Amendment:
The Copyright Act serves First Amendment interests by encouraging authors to create works. But copyright law can also discourage the creation of new works by preventing subsequent creators from using copyrighted work to make their own, new speech. Courts have long recognized this inherent tension, and have also recognized that the conflict should sometimes be decided in favor of allowing a subsequent speaker the right to make unauthorized use of others' copyrighted works. Accordingly, courts created, and Congress codified, the fair use defense to copyright infringement, which allows unauthorized use of copyrighted works under certain circumstances that encourage speech and creation of transformative works. The problem with fair use, however, is that the informational uncertainties and transaction costs of litigating the defense make the fair use right unavailable to many as a practical matter. Subsequent creators are left open to intimidation by copyright holders threatening infringement suits. By decoupling the copyright misuse defense from its basis in antitrust principles and basing it in First Amendment speech principles, the legal protections for fair use shift from theoretical rights to practical rights for many. Copyright misuse has two deterrent features that will allow fair use as a practical right. First, a copyright holder's misuse of its copyrights against anyone can be used to prove the defense of misuse. Second, once misuse is found, the copyright owner loses its ability to enforce its copyright against everyone, at least until the misuse is cured. Thus, by defining as copyright misuse the unjustified chilling of speech that some copyright holders perpetrate, the misuse defense will encourage important speech rights that are currently under-protected.
This is definitely a paper worth reading, even if it seems unlikely to ever be adopted by the courts or Congress. It would definitely be a big improvement over what we have today. It's really too bad how rare it is for courts to actually consider the First Amendment implications of their copyright rulings.
Last year we had a post, based on a post by Peter Friedman, suggesting a big reason why Girl Talk hadn't been sued for creating entirely sample-based music was because there was a good chance that Girl Talk/Gregg Gillis would win that lawsuit, and establish a clear fair use right in sampling. Now, with the more recent discussion about the legality of the documentary Copyright Criminals, Friedman is making the same point again: suggesting that the filmmakers won't get sued, because they would likely win, and redraw the boundaries of the law on music sampling and fair use:
But if McLeod is willing to fight a lawsuit -- and I think he is -- the recording industry won't sue him. The existing precedents requiring licensing of every single recorded sample would be overturned, and the record industry would [have] lost the appearance created by these precedents, an appearance that makes the vast, vast majority of samplers pay license fees for their samples. It's better business for the industry to let the occasional brave and creative soul feel as if he's getting away with something than to have the industry's precious -- and ill-founded -- legal precedents put at genuine risk.
Of course, there's a separate argument, that has been made by Copycense, that race actually plays a role in this. The musicians who have been sued over sampling tend to be black. Gillis is not:
Gillis hasn't been arrested or sued because his socioeconomic status fits what the mainstream wants to see when it talks about this issue. Gillis' bio reads well for mainstream public relations purposes -- he is white, middle-class, and educated -- and his basic story (fell in love with music and sampling while studying science at a renown institution of higher learning) is All-American. For establishment folks like Congressman Mike Doyle (D-PA), who represents the district in which Gillis resides and has testified before Congress on Gillis' behalf, Gillis' story presents a squeaky clean image of American innovation -- and decidedly not sepia-toned humans toiling against misery in dark, sweaty, basements or ghetto community rooms where sampling and hip hop culture were born out of the need to get by with less.
On that note, while the movie Copyright Criminals features a mix of artists of different races, many are black. However, the main fillmmakers behind the film, Benjamin Franzen and Kembrew McLeod, are both white. I have no idea how much of a role this actually plays in the decisions about who to sue over sampling, in music, but if race really does play into it, that would be a shame.
Earlier this year, we pointed to a lawsuit involving Rupert Murdoch's News Corp., sued for airing an interview with Michael Jackson's ex-wife. We noted how amusing the lawsuit filing was, because it blatantly mocked Rupert Murdoch due to his earlier statements claiming that fair use would be barred by the courts -- trying to cut off that defense. But, of course, the only way to defend the actions is to use fair use -- and that's exactly what Fox News is doing in its defense of the lawsuit, heavily claiming fair use. It certainly makes you wonder -- if Murdoch ever really does pull that supposedly itchy trigger finger on a Google lawsuit -- if filings such as these will come back to haunt him. How can he claim that fair use doesn't exist on the one hand, while one of his companies uses the doctrine to defend itself in a lawsuit?
Recently, there's been some talk about David Shield's new book, Reality Hunger, which is getting some press attention for the fact that most of the book is "plagiarized." Or, rather, the book is derivative. It's a literary collage, of sorts, with only an appendix at the end that links the works back to the original authors -- and that appendix was put in against Shield's original wishes, but on the command of his publishers' lawyers. Of course, as many have noted, even the idea is derivative. Three years ago we wrote about Jonathan Lethem's wonderful Harper's article, The Ecstasy of Influence, which, again, was a collage of other people's works.
And, of course, this follows on the recent "controversy" over a German teen who had done something similar, but did as Shields originally wished, in that she chose not to directly credit the sources in the book.
While some are confused by all of this into thinking that the entire concept of "authorship" is at risk -- many are realizing that's utter hogwash, and this actually shows how unique forms of new content creation are thriving.
However, there is a separate issue that's worth pointing out. While there is some controversy over these sorts of books, we're not hearing about lawsuits -- and we're definitely not hearing about demands for licensing fees. Yet, in the music world, thanks to a series of highly questionable legal rulings, it's impossible to do the same thing. If you make a collage in music, you have to clear every sample or risk getting sued. In some cases, such as Girl Talk, the lawsuits haven't come, but plenty of sampling lawsuits are still filed, and many in the music business want to clear every sample.
But this vast split between the process of creating a remixed/collage book and a remixed/collage music is reasonably upsetting many. Copycense points us to a manifesto, refering back to the discussion on Reality Hunger, suggesting that musicians should stand up for their rights to make derivative, transformative works without having to pay for every sample -- just as what's happening in the literary world:
Rather than take offense however, I'd like to turn the tables. Indeed what Shields has done is art, and should be treated as original despite being a derivative work. Where this is accepted, and every day it remains on the market supports its acceptance, then all other original derivative works must be held to the same standard. The archaic practice of extorting sample based artists for their profits on the legal basis of treating their art only on intellectual property terms, must be out eliminated. If an author is legally protected in their use of derivative works by simply citing the reference to their usage, there can be no double standard when it comes to musicians.
And so I put forth to sample based producers, and the labels who support them, it's time to take this issue to task. End your relationships with the sampling clearing houses. Create your art without the fear of legal repercussions. Release it for profit, with your sample sources clearly stated. At first there will be legal cases brought up, but DO NOT BACK DOWN. You are on the side of the right, and it is only by pushing forward that the laws will change to reflect that. I believe there are lawyers and activists who need to, as well as those who already do, stand with us to take this as far as it needs to go, but it begins with us the artists not being afraid to stand up for what is right.
Of course, some might argue that it's not necessarily that this is legal in the literary space, just that it's rare for a lawsuit to be filed over such appropriation. Tragically, that's not the case in the music business. But, on the whole, I do agree that it's high time that the courts fix what they got so very, very, very wrong on the legality of de minimis copying of music -- and one way to make that happen is to get musicians who sample to stand up for their rights to sample without having to pay a toll.
I've spent the last few hours going through the motions for summary judgment from both Google and Viacom in the YouTube case. If you'd like to kill a few hours yourself:
There are few surprises made in the basic arguments by both parties. Viacom claims that YouTube knew about infringing content and should have taken it down (and that Google knew about this and then continued with that policy). Google claims that it's clearly protected by the DMCA's safe harbors. There are some interesting things raised in the filings however:
Viacom claims that YouTube employees uploaded infringing content themselves, and discussed this over email -- though, the filings carefully provide only fragments of the emails, which could easily have been taken out of context. And, even on top of that nowhere does Viacom explain how YouTube employees could distinguish which content was actually infringing and which was put up for promotional purposes or what was fair use. This is a major weakness in Viacom's motion.
Viacom's secondary arguments get weaker as you go down the list. It argues that because YouTube uses advertising to make money, that shows the company directly profits from infringement. That argument makes no sense -- because it would effectively wipe out any safe harbors for any commercial operation, which clearly was not the intent of Congress. Based on this argument, any ISP that hosts content from a paying customer loses its safe harbors. That's ridiculous on its face.
Viacom argues that Google could have blocked uploads with fingerprinting technology it had licensed, but fails to note the massive weaknesses in those fingerprinting technologies (which we still see thanks to Google's bad automated takedowns). It tries to bolster this argument by saying that Google refused to use the fingerprinting on Viacom content unless Viacom agreed to license its content to YouTube. Perhaps there's more to it than this, but I think that's also taking Google statements out of context. The way the fingerprinting works is that Google would need copies of the content to be able to recognize them -- and the only way to do that is if Viacom licensed works to them.
Then the arguments get really weak. Viacom says that Google isn't just a secondary infringer, but a direct infringer, due to the terms of service that say you're granting a license to YouTube, and because to work, YouTube converts uploaded video to Flash. This is a weird legal argument that has been rejected before.
The crux of Viacom's argument rests on trying to break the DMCA safe harbors because Google and YouTube execs knew that there was a lot of infringing content on the site. But Viacom's argument breaks down entirely when you realize it doesn't explain how Google could ever make the actual determination of which videos are infringing. Viacom tries to get around this with some legal tap dancing, basically saying that it doesn't matter and Google just should have known what was infringing and what was not. But that makes no sense. Viacom is basically saying Google should have had a magic wand to figure out what's infringing and make it disappear. That's impossible. No law could possibly require Google to do the impossible. The fact that some of the videos Viacom sued over were uploaded by Viacom itself proves this point clearly.
Viacom argues that because YouTube "licensed" its videos to Apple and Verizon Wireless phones, it shows that it's more than just a passive service provider. Again, this seems like a weak overall argument, as what YouTube was doing was licensing access to the videos in a more convenient format, not claiming control over the videos themselves.
Viacom's lawyers also have a bit of fun at the fact that some old emails relevant to the case were deleted, even though it's not that ridiculous that not everyone keeps all their emails. The motion also mocks Google and YouTube execs for developing "serial amnesia" when presented with "evidence." But, again, Viacom was asking people to remember specific sentence fragments (potentially taken out of context) from years-old emails.
The "big surprise" in the Google motion is that Viacom apparently tried to buy YouTube itself. While interesting as a historical nugget, I'm not really sure that really helps the case one way or the other. It doesn't change how Viacom may have viewed YouTube as a platform. The attempted purchase may just have been a way to try to co-opt it into a limited platform, like what happened with Napster.
Google argues that it has gone above and beyond the DMCA's requirements in providing tools to help copyright holders. Viacom's counter argument, of course, is that those changes are more recent.
For every claim made by Viacom that Google/YouTube execs made damning statements, it looks like Viacom's statements were even worse. For example:
During these negotiations [to license content] Viacom deliberately allowed its content to remain on YouTube, in part because it thought that "having the content there was valuable in terms of helping the rating of our shows."
Google effectively makes the case that Viacom knew the benefits of having its clips on YouTube, tried to negotiate with YouTube for a deal, and when Google came into the picture, basically Viacom just saw it as an easy money grab and massively upped its demands before suing. Google argues that the mass takedown and subsequent lawsuit was really just a negotiating ploy by Viacom to get an upper hand in the negotiations to squeeze more money out of Google.
Amusingly, Viacom notes repeatedly in its own filings that YouTube didn't want to take down its videos because traffic to YouTube would suffer -- but Google counters by pointing out that it did take down all of Viacom's 100,000 takedown requests within hours and traffic to the site did not suffer and, despite Viacom's expectations to the contrary, traffic to Viacom's own sites did not soar. In other words, despite Viacom's over-inflated sense of how important Viacom's videos were to YouTube, the actual evidence suggests that Viacom was very, very wrong.
Viacom tries to brush off the fact that it uploaded many videos itself, by saying (in a footnote) that most of those videos were clearly designated as being from Viacom. Google counters by pointing out that (a) this is not true and (b) Viacom repeatedly disguised who uploaded those videos on purpose -- even quoting Paramount's SVP of marketing saying that the clips "should definitely not be associated with the studio -- should appear as if a fan created and posted it." Among the users who uploaded Viacom clips on behalf of Viacom itself?
MMysticalGirl8, Demansr, tesderiw, GossipGirl40, Snackboard and Keithhn
On top of that, they registered with non Viacom email addresses, and even went to the local Kinkos to avoid uploading from Viacom directly. How Google was supposed to distinguish those clips from those uploaded by random users is not explained anywhere by Viacom, which is a hugely damning point against Viacom's case.
Further damning to Viacom's case -- the fact that Viacom regularly had to backdown on its takedown notices after it was realized that the takedowns were incorrect. This is a point that we've made before and is driven home repeatedly in Google's filing. If Viacom itself can't get it right -- when it holds the copyrights and some of the videos were uploaded by itself -- how the hell is Google supposed to know which videos are legit and which are not?
Even more amusing is the part that details how Viacom had incredibly complex and detailed rules with BayTSP (who monitored YouTube and sent the takedowns) over what should be taken down and what should be left up. Apparently, those rules changed every few days and the folks at BayTSP compared them to Crime and Punishment. Again, if Viacom required such a complex list of rules for its own partner, how could it expect Google to know what to do without knowing any of that information?
Google also points out that many of the clips in question have serious questions over whether or not they could be considered fair use -- and those are questions for a court to determine. It is both unfair and outside the scope of the law to expect a third party like Google to be able to make that kind of decision on the fly.
In the end, it will surprise no one that I find Google's arguments significantly more compelling than Viacom's. The one point on which Viacom is strongest is the emails from the very early days of YouTube, where the founders and some employees admit that they know there's a fair amount of infringement on the site, and they debate what to do about it, before taking a fairly liberal approach -- though, never an approach that removes their safe harbors (Viacom disagrees on that point). In fact, the weaknesses of Viacom's argument are driven home in that nowhere was it able to produce a single bit of evidence of YouTube founders/execs being aware of a specific infringing video. All of the quotes are about general infringement. The lack of a smoking gun email to the contrary really weakens Viacom's case -- and is a glaring absence in the motion.
What this comes down to in the end is a basic interpretation of what the DMCA really says and means with its safe harbor provisions. Viacom's interpretation would effectively gut the entire purpose of the safe harbor provisions, disqualifying pretty much any commercial entity that allows user created content from gaining safe harbor protections. Such a reading makes no sense as it would make the DMCA safe harbors effectively meaningless.
Google's motion, on the other hand, is quite compelling and highlights how even if execs are aware of general infringement across the site, it was impossible for them to distinguish what was authorized and what was not, as well as what was fair use and what was not. To require a third party like Google to make such determinations would effectively gut the ability of pretty much any user-generated content site to exist -- which, again, would clearly go against Congress' intentions.
Still, with these sorts of lawsuits, you really never know how things will play out -- and judges often get blinded by "infringement bad, must punish!" type arguments. Hopefully, in this case, reason prevails.
Update: Eriq Gardner over at The Hollywood Reporter basically came to the opposite conclusion and found Viacom's arguments persuasive. To him the discussions among YouTube founders is damning, though I still think there's a massive difference between saying "yes, there are infringing videos on the site" and "we know which videos are infringing" is a large and important gap -- and Viacom failed to close it.
Last month, we wrote about how the Association for Information Media and Equipment (AIME) had threatened UCLA with copyright violations for allowing professors to post videos online for students to view. This resulted in UCLA pulling down those videos -- even though the university said it believed it had a very strong fair use case. Since pulling down the videos, the two sides have been talking. However, even without an agreement, UCLA has decided to put the videos back online for the next quarter. Given this, I'm guessing that it won't be long before AIME files a lawsuit, so we might get an interesting case over fair use in educational settings...
