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A Law Professor's Opinion of Viacom vs YouTube 155

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

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  • by CrazyJim1 (809850) on Saturday March 17, 2007 @11:51PM (#18391815) Journal
    Is Slashdot responsible for it's user's material? No.
    Should YouTube be responsible for it's user's material? Viacom says yes. Viacom doesn't want to get into the buisness of tracking down users individually.

    Now is Google supposed to rat out offenders minimally? Or is Google supposed to become the user generated content police themselves? If they are, it sets a bad prescedent for all text forums online in that the moderator will have to make sure the posters aren't posting something copywrighted. I won't get into draconian measures an oppressive government has on free speech, even though it does tie in.
  • by foodogfoo (1077173) on Saturday March 17, 2007 @11:57PM (#18391841)
    Very true ... I see this debate almost everyday about users in various forums cut and pasting articles and sometimes the whole article. Too many shades of gray to figure it all out.
  • by zappepcs (820751) on Sunday March 18, 2007 @12:02AM (#18391861) Journal
    While the arguments on the table are whether Viacom right or is YouTube right, but the real question that will be answered by the outcome of this little court battle is: what will video entertainment look like in the coming decade? If Viacom wins, it will look pretty much like it does today. If YouTube wins, it will look like we all want it to look: Video on demand, anywhere, anytime, any content.

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

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

    IMO, it would benefit the industry, the country, the world if YouTube wins. I say this because on-demand content is the future, and not the kind where you are paying DVD rental costs for each view. The on-demand video industry will replace television eventually, but it cannot grow to that size if the Viacom's of the world are allowed to destroy it before it gets off the launching pad.
  • Re:Ironically (Score:3, Insightful)

    by limecat4eva (1055464) on Sunday March 18, 2007 @12:11AM (#18391909)
    The lasting legacy of this administration will be conflict and unrest engulfing everything from Istanbul to Islamabad. Bush will be remembered more for his neglect, incompetence, and tolerance of failure than for his appointments to the Supreme Court, which are frankly forgettable in the disastrous broader picture.
  • by OECD (639690) on Sunday March 18, 2007 @12:25AM (#18391979) Journal

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

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

  • by Talennor (612270) on Sunday March 18, 2007 @12:42AM (#18392055) Journal
    Since when is Lawrence Lessig introduced on Slashdot simply as "a law professor"?

    Big in the "Free Culture" movement and writer of the phrase "code is law". Slashdotters should recognize this name.
  • by edwardpickman (965122) on Sunday March 18, 2007 @01:27AM (#18392195)
    Youtube's business model has depended on copyrighted material for roughly half it's content. Their stance is tell us what you don't like and we'll take it down. Well they are effectively asking the copyright holders to police their site. Viacom will have to create an entire department just to police Youtube. Youtube benefits from the traffic while Viacom takes on the expense of tracking down copyrighted content. Let's say I start a TV network based on old TV shows. Half are in public domain and the other half are copyrighted. My policy is is you complain about a specific episode I'll stop broadcasting that episode. It's even worse with Youtube because it's like tens of thousands of TV stations running at the same time and even if they take down the episode some one can post it again minutes later. It's an impossible situation for Viacom. The only option other than fighting it is to let them run content for free. If they do that the advertisers will refuse to pay when large numbers watch commercial free postings. There's already been a drop in commerical revenues. The networks are facing a loosing battle and what it means is eventually little or no new content. In the old days just for primetime the networks would do three hours or more of content with even more non primetime content. Now nearly half of television is paid advertisements and a lot of the rest is reruns. The average for primetime content is less than two hours and dropping and a lot of that is reality TV. Network TV won't survive in the long run. People may not post and file share lesser shows but they will the popular ones and those are the profitable ones due to commercials. Take away the profit and TV goes away. The only other option is going to a BBC system where tax money is used for broadcast TV and the budgets of the average show is pocket change.
  • by goombah99 (560566) on Sunday March 18, 2007 @01:37AM (#18392239)
    When does a Pawn Shop or Consignment Shop that accepts stolen goods become a fencing operation. Presumably it has to do with if the pawn shop owner knew or had reason to suspect the items were stolen. But of course we know that's not good enough. We must also expect the pawnshop owner to make a good faith effort to determine if the goods were stolen. Otherwise we end up with a bunch of Sargent Shultz, winking de facto fences. (I know nothing!). Yet we also can't expect the pawnshop or consignment owners to work so hard at establishing the provenance or they can't exist as a bussiness.

    Now scale this up to the point where the consignement owner has both slashed his margins to the bone, and is accepting and reselling so much merchandise he literally hasn't the staff or time to check. Then you have E-bay.

    E-bay is a consignment shop that is not really meeting the good faith effort that is the industry standard for pawnshops.

    One the one hand, who gave them a free pass on making an effort? On the other by having a huge customer base and low margins, they in some ways have created a new industry. They are arbitraging the junk drawers and attics of america. Putting all that goods back into circulation effectively increases the wealth of the nation, and also means less waste of resources to remanufacture items. It's giving people who could not afford goods, those goods at lower costs, and it's also encouraging others to buy new goods they might hesitate to buy because they know they can cash them out later.

    So arguably it's good for the nation.

    How to we resolve this dichotomy: promotes illegal activity and is below community standards for good faith effort to prevent that activity versus promotion of healthy commerce at a mega scale.

    Hmmmm. Hell if I know. A freind of mine had his skis stolen. One assumes they probably went on e-bay. He also bought a pair of skis to replace them on e-bay at a below wholesale price. Coincidence? Ebay has lots of legit merchandise but it's a good place to sell stolen stuff too.

    But this viacom thing is the same thing all over again except this time it's intellectual rather than physical property.
  • by TubeSteak (669689) on Sunday March 18, 2007 @01:53AM (#18392305) Journal

    Now they're trying to outsource that job to content providers, even ones that comply with their DMCA notices.
    While Viacom (IMO) is on the wrong side of the law, Google/YouTube may have potentially created a problem when they instituted filtering for media companies that are willing to make a licensing agreement.

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

    Viacom is going to make the argument that since YouTube has it, they should be forced to apply it on Viacom's behalf.
  • by heinousjay (683506) on Sunday March 18, 2007 @02:47AM (#18392533) Journal
    People will do it for free! And it'll be better than the commercial crap everybody hates but downloads anyway, because it'll be done only with pure motivation! All those video blogs of people picking their nose while discussing the latest developments in their crusade against disease-free personal areas will provide our entertainment.
  • by Anonymous Coward on Sunday March 18, 2007 @04:24AM (#18392865)
    YouTube is not effectively asking anyone anything. The DMCA lays out the legal ground work for protecting copywrite. This is the DMCA that google lobbied against, and Viacom lobbied for. If Viacom has changed their mind, they need to change the law. But as Lessig points out, thats not terribly likely at this point.

    The TV station analogy is crap. Pure wishful thinking. A TV station has a program manager, they do not rely or even allow "user" content. The BASIS for YouTube (do you not already get it?) is YOU provide the content. The difference is very important. In fact, it's the reason that Youtube still exists.

    It's foolish to allow Viacom to leech money from Youtube, either for content "protection" systems or thru forcing monitoring onto YouTube. And lets not forget, they had a chance to share the profits, they didn't want to play by Youtubes rules.

    You talk about the end of TV as we know it. You talk about it like thats a bad thing. It's not. An end to the tripe that populates all 500 channels on my satellite is more than worth celebrating. And few if anyone is going to cry about it. One could make a strong argument that the current offerings are actually poisoning the minds of the watchers, but thats another story altogether. And are the advertisers being hurt? First, Who cares? Second, do you rush out and buy everything you see on ads? Any of it? Do you make consumer choices because of ads?

    The BBC model is worth investigating, as far as I'm concerned, it works. I watch alot more BBC TV than I watch US TV. Maybe when you don't have a 1m per episode budget, you actually have to focus on good story telling. Who knows.

    Let me summarize. Viacom along with the rest of the "content" industry lobbied, bribed and manipulated the united states political machine. They passed a law, the DMCA, that favored the content industry in almost every conceivable way. Then YouTube came along. And because YouTube followed the rules, but became popular anyway it became difficult to find and censor all the content. So then Viacom tried to weasel into the ad revenues. But google wouldn't give them enough of it. So now Viacom is suing. Isn't it clear who is in the "right"? Viacom has chosen to litigate, rather than follow the rules they had a hand in creating. I have about 0 sympathy for them.

    That being said, Youtube is doomed eventually, maybe this case, or another. The content industries will win eventually in a limited fashion. That limited fashion is that any commercial service like napster, youtube, or what have you will fail due to litigation costs. Simple as that. Even if they don't actually LOSE the court case, like napster, they will be sued to the ground as often as it takes. That still leaves us with other channels, but those channels will likely never be more than a small portion of the population.

    This case is likely unique in that both sides have deep pockets. But Viacom has no choice but to fight to the death. Where as google can and will cut Youtube loose if it becomes too expensive.

  • by grmoc (57943) on Sunday March 18, 2007 @04:34AM (#18392889)
    Yup. Welcome to the internet and the new paradigm.

    I have little sympathy-- They want absolute control over the works, for 70 years, despite the obvious fact that this is not what the market wants! The market wants a more dynamic approach to content acquisition. If they'd embraced the technology, instead of fighting it, then they wouldn't have to deal with the consequences of the law which they pushed for.

    Instead of content on demand, we have a seeming dearth of good programing, and an increase in the amount of advertisement. One has to wonder if either of these factors have a role to play in the movement of content from the authoratarian control of the network execs to the more facile playground of the 'net.

    Keep in mind that a fair bit of what people communicate is expressed in common shared experience, and a chunk of that shared experience is copyrighted content, so of COURSE people are going to want to share that with others if they want to communicate with them!

    I keep hearing a lot of sympathizing for the copyright-holders, but am not seeing the real change to their bottom line. What I AM seeing, however, is a lot of fear and uncertainty about the future of the content distribution and control channels that these companies have established. I am also seeing a lot of artificial roadblocks being thrown up in the face of actual innovation. The face of technology has been altered, and convenience sacrificed, and it -appears- to be based on fear instead of fact.

    Random interesting points:
    Viacom had a gross PROFIT of 4.8 billion dollars in 2005.
    Viacom had a gross PROFIT of 5.4 billion dollars in 2006.
    Hollywood makes most of its money now from DVD sales, and not necessarily from broadcasting or theater showings.
    We pay money for cable TV today. It didn't used to have ads on all the channels.
  • by mike2R (721965) on Sunday March 18, 2007 @04:34AM (#18392891)

    But this viacom thing is the same thing all over again except this time it's intellectual rather than physical property.

    The difference is that the DMCA makes it crystal clear that YouTube is meeting it's obligations as long as it takes down infringing content when the copyright owner points it out.

    This was a deliberate decision made by congress, aimed at allowing businesses like YouTube to have a sane set of rules to follow. If Viacom don't like it they should convince congress to change it's mind. They don't think they can so they're asking the courts to "interprate" the law until it says what they want.

    Your reasoning is perfectly valid, but it isn't for the courts to decide since the legislature have passed a law on exactly this issue.

  • by Antique Geekmeister (740220) on Sunday March 18, 2007 @05:06AM (#18392995)
    No, I'm afraid not. It's easy to tell on even a casual glance whether a video has nudity or pornography. It's quite awkward to search for copyright: verifying the copyrights alone is a job for a seriously large legal department, especially with "fair use" laws or policies.
  • by zotz (3951) on Sunday March 18, 2007 @08:29AM (#18393491) Homepage Journal
    "That being said, Youtube is doomed eventually, maybe this case, or another."

    I am not so sure...

    YouTube Summer of Art anyone?

    Put up some nice prizes in several categories. Contest rules like so:

    1. Make and post videos in some category. License must be copyleft.

    2. Put all "raw materials" that went into the video up somewhere like the internet archive. (Google could host for free as well I guess.) This is for reuse by all in the next contest that will be held.

    3. Winners determined. (How? Most popular on YouTube itself? Some other way?)

    4. Winners get a nice budget to make more copyleft videos.

    Whatever.

    If the "content" industry insists on hamstringing the tech industry, the tech industry might need to fund alternate content. Content that can't be used to hamstring new tech but would rather promote new tech while that same new tech promotes that content.

    all the best,

    drew

    http://www.youtube.com/watch?v=vcaf2ThG7q4 [youtube.com]
    UFO seen in skies over Winton!
  • by Bodrius (191265) on Sunday March 18, 2007 @09:07AM (#18393647) Homepage
    No, he should be introduced as "Prof. Lawrence Lessig", and a short explanation of who he is should be in the summary, with some background links for context.

    Much like Bruce Schneier is presumed to be a recognized authority in cryptography and security, Lessig is universally recognized as an influential authority on the field: copyright, software and IP in general. Whether he is right or wrong, his opinion most likely will carry more weight in and out of academia than other random law professors.

    Mentioning Lessig as "a well-known law professor" loses a lot of context: both the weight of his credentials and influence, and the history of his work and corresponding bias.
    While I agree with the original posters that his name on the title will be enough for most Slashdotters, just a couple of background links would let everyone see where he is coming from, and why an op-ed on IP from him has more effect than one by Harriet Miers, for example.

  • by squiggleslash (241428) on Sunday March 18, 2007 @10:31AM (#18394011) Homepage Journal

    Not really sure where he gets off on the conservatives vs justices thing above, because the decision in the Betamax ruling in 1984 was essentially made by the so-called liberals on the supreme court, and opposed by people like Reinquest. Betamax, indeed, was an expansion of fair-use, which isn't something Congress had explicitly ruled upon in any way relevant to the Betamax case.

    Be that as it may, what, exactly, is the evidence that the court is going to rule against YouTube even if it shows it did obey the safe harbor provisions of the DMCA? I'd say exactly none. The Grokster ruling is completely irrelevant to this case, as the safe harbor rules were something Grokster et al went out of their way to avoid making even practical on their networks. Grokster's case was harmed by the central fact that they were relying upon piracy to make their networks commercially viable, as the numerous memos and other documentation entered into evidence made abundantly clear.

    YouTube is an entirely different case, and unless Viacom can show that YouTube hasn't obeyed the DMCA safe-harbor provisions, even if they're able to show YouTube has acted in bad faith they're unlikely to win this. I find it highly unlikely though they'll be able to find anything about YouTube close to the overwhelming evidence that was available to show Grokster was acting in bad faith: YouTube's model has always been based upon people uploading their own videos, while copyright infringement is common it doesn't really make up the bulk of what's there and why people go to YouTube.

    If the law is followed, and there's no reason to believe it will not be in this case, and if YouTube has been obeying the DMCA, I'm not seeing why they'd lose, and I'm certainly not seeing why a court would write new law just to damn them when the intent of Congress is clear, and when there's no evidence YouTube wants their network used for infringing material.

  • by lightsaber777 (920815) on Sunday March 18, 2007 @12:48PM (#18394765) Journal
    I don't think he's saying "conservatives vs judges". The sentence "conservatives on the Supreme Court have long warned' about the dynamic of going against Congress when it comes to copyright." says that conservatives are warning that going against Congress on these matters is not the correct process.
  • by hey! (33014) on Sunday March 18, 2007 @01:09PM (#18394891) Homepage Journal

    The DMCA protects passive storage - think web hosting companies.[emphasis mine] YouTube obviously has knowledge of what's up and filtering is implemented in a lot of places, including MySpace (with approximately equal volume). In short, YouTube is arguing that it can sell content to users (by advertising to them), but doesn't itself know what's on.


    "DMCA protects passive storage" is a pretty narrow restatement of the safe harbor protections of DMCA.

    I think it's more accurate to say that the provider cannot knowingly participate in copyright infringement for its own private gain. And narrowly speaking, Google really doesn't know what is going on.

    While I'm sure that Viacom will try to argue that YouTube knowingly violates DMCA in each instance of copyright infringement, it's a pretty hard sell. I wouldn't be surprised though if they end up arguing in the alternative that Google, while not technically violating the DMCA, is negligently encouraging and enabling users to violate Viacom's rights under the DMCA.

    Here's where Google's technology gets them into trouble. While they don't know whether any individual submission violates copyright, they clearly plan to analyze the text related to it in order to sell advertising. Then surely they could detect whether a submission is a probable violation of Viacom's copyrights. If they simply charged users for the right to put up data (like a web hosting provider) then they couldn't be said to benefit from the copyright infringement. But in this case they do benefit; if somebody puts up the video of the next Spider Man movie, and people flock to download it, then Google is benefiting from that because of their business model. The question is, are they knowingly doing so?

    In my opinion, no system of copyright infringement detection would ever work well enough to be practical on its own. Leaving aside the fact that copyright holders like to post things on YouTube themselves to promote their work, no automated system will be able to distinguish infringement from fair use of, or simply accidental connections to, copyrighted materials. Not unless it has a living, breathing lawyer attached to it.

    That's the point of safe harbor, a kind of division of labor. It has to be the responsibilty of the copyright holder to police its copyrights. The service provider's responsibility is to cooperrate vigorously with the copyright holders when they find an infringement. To hold Google in violation of the DMCA is to reintepret Title 2 in exactly the way the parent poster has: to protect only "passive storage". My belief is that if Congress intended this, they could have said so plainly. Instead they said the service provider must (a) benefit (which Google unfortunately does) and (b) have the ability to control the posting of infringing material (which Google clearly does not have). Google is in a position to investigate whether a piece of information infringes on copyright -- probably better positioned than any other company in existence. But this doesn't change whether the DMCA itself requires them to investigate everything their users do. Google may have such a responsibility, but I don't think it's in DMCA itself.

    Viacom could reasonably argue that Google is negligent in creating a service that is so convenient and popular with copyright infringers, but they can't reasonably argue that they have suffered damages as a result of this if they have made no efforts to police their own copyrights; if they have not been dilligent in finding infringing uses and issuing takedowns, if they have made no effort to discuss means by which infringers can be stopped. If they take none of those steps, this would imply they look at the infringements as harmless or even beneficial. While they aren't required to defend their copyright, it looks pretty weak if they waltz into court claiming massive damages, given that they haven't made deperate efforts to head off those damages. In fact, given that this follows YouTube being acquired by a cash rich company, it's a transparently opportunistic attempt, not to stem or recover damage, but to make a buck in court.

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