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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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  • Digital Rights Act (Score:5, Interesting)

    by geekbeater (967717) on Sunday March 18, 2007 @12:01AM (#18391855)
    As the opinion piece clearly points out, a deal was struck by law in 1998...now one of those parties doesn't want to have to hold up its end of the deal. (Viacom self monitoring of content providers) It is always frightening when the courts make law, of course it is rightly obvious that is not their intended responsibility to do so...but the oversight of lawmakers has been usurped by their fear of not being re-elected...no one in congress wishes to show leadership...i.e. "rock the boat" as it were , heaven forbid if they can't stay on the DC party circuit.
  • Ironically (Score:5, Interesting)

    by eclectro (227083) on Sunday March 18, 2007 @12:04AM (#18391871)
    Many people have roasted GWB for his apparent glaring shortcomings. But I bet his one lasting legacy will be his judicial appointments to the supreme court that may reign in copyright gone amok.
  • Who didn't see this? (Score:5, Interesting)

    by shrapnull (780217) on Sunday March 18, 2007 @12:11AM (#18391905)
    Even before Mark Cuban stated that whomever bought YouTube would become a "marked" company, how many of us genuinely thought that YouTube could succeed with millions of leechers benefiting from loose standards under the guise of "Fair Use" and no income?

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

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

    The justices will ultimately determine who the winner/loser is, not Congress. This is a rare stage in history where the "intent" of the law will determine its true meaning and either empower or enslave the people going down one path or the other.
  • by haaz (3346) on Sunday March 18, 2007 @12:25AM (#18391975) Homepage
    Yes, what would Siva Vaidhyanathan [slashdot.org] do?
  • Re:Ironically (Score:1, Interesting)

    by Anonymous Coward on Sunday March 18, 2007 @12:51AM (#18392101)
    I think it's worse than that. He'll be remembered for:

    -screwing over their own trading partners (like Canada over soft wood lumber)
    -trying to force other countries to go to war without evidence
    -for laws like the patriot act
    -being a bible thumper (nothing personal against christians - all them overly religious folks scare me) and being borderline oppressive against atheists
    -trying to force other countries to change their laws (like pressuring Canada for stricter copyright laws)
    -violations of human rights e.g. guantanamo bay
    -trying to police the world in general (downright scary for most if not all non-americans)
    -record budget deficit
    -not really knowing what happened on 9/11 for sure, or what ties were there between al quaeda and iraq (I don't see any)
    and lots more stuff like that... This list is virtually endless.

    Basically, they've turned a country where I wish I lived into a place I'm not keen on even visiting anymore. The people are great, but the government and laws... Disastrous is quite an understatement. Bush is the only president I've ever been scared of. Kind of a drastic change, because Clinton looked like the type of guy I'd go drink with...
  • by Petey_Alchemist (711672) on Sunday March 18, 2007 @01:54AM (#18392315) Homepage
    I believe that if you read Grokster, you will find that the court's rationale is favorable to YouTube.

    Let's look at the holding:

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

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

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

    I do not see Viacom winning this case, and I am surprised Lessig didn't opine similarly.
  • It's funny. Laugh. (Score:2, Interesting)

    by Short Circuit (52384) * <mikemol@gmail.com> on Sunday March 18, 2007 @02:35AM (#18392487) Homepage Journal
    As someone else pointed out, pasting text articles into forum articles is related to the kind of copyright violation issue Viacom is suing over.

    So someone posting the comment of the article in the Slashdot discussion, considering the article isn't slashdotted, is, well, funny. But it illustrates that Slashdot is subject to the same types of copyright violation.

    IIRC, CmdrTaco and friends already had to deal with it once before, with the Scientologists. (Though that wasn't a copypaste of a linked article...)
  • by julesh (229690) on Sunday March 18, 2007 @05:27AM (#18393051)
    I believe that if you read Grokster, you will find that the court's rationale is favorable to YouTube.

    That's not Lessig's point: his point is that in making the Grokster decision, the court effectively created new liability for an action that wasn't covered by legislation. This is something they've previously shown themselves unwilling to do. If they do the same thing in this case (i.e., create new liability that doesn't originate in legislation but which protects copyright holders more than the legislation does), they could find against YouTube.

    Bizarrely, I think he's wrong. Yes, I know he knows more about law than I could ever hope to, but I think his bias is blinding him to a simple fact: the liability in the Grokster case was not new. It was simply combining existing theories of liability in an obvious but previously unused way (kind of like most software patents...). But any finding against YouTube would have to be completely new: it would need to find a way to limit the safe harbor provisions of the DMCA in a way that has never been done before. Going up against a lack of legislation is easy, you can find ways around the edges. A lot of law is like that. Going up against solid legislation that says your case should be thrown out is rather trickier. You have to confront it directly.
  • by Stanislav_J (947290) on Sunday March 18, 2007 @06:23AM (#18393161)

    ...then they are just looking for a big payday from Google's deep pockets, and are using the suit to force them into some sort of deal the way some other content providers have done. Realistically, there is no way to effectively police millions of clips uploaded on a daily basis for copyright violations any more than Slashdot could police every single post on its site to see if there is anything infringing, libelous, or somehow illegal. And don't forget, YouTube is NOT the only game in town -- they may be the biggest and most popular such site, but many times I have seen a clip that was killed on YT simply turn up on a dozen other smaller video sites -- I don't see Viacom going after them. If you had a physical product that was being sold illegally, you're going to sue Wal-Mart, not Bob's General Store -- you go where the money is.

    BUT, sometimes these things depend more on the attitudes and personalities of the rights holders than anything else. I can give an example of that on a much smaller sale. I have an acquaintance who had been providing short, out of context clips of some obscure TV shows that (a) are not being rebroadcast anywhere and (b) are not likely to be offered commercially in any form because there is simply not a big enough market for the material, and it would not have been profitable for them to do so. His efforts appealed to a very small, narrow group of fans. Nonetheless, he received a C&D letter, a threat of a lawsuit, and a demand for compensation from the holder of the rights to these shows. His argument that the owner was not making a dime off the material, and indeed had no intentions of doing so, and that therefore he was causing no financial harm to them, fell on deaf ears. Because, basically, you can own a copyrighted work, and lock it away in a vault never to be seen again, and still demand that no one else make use of the material. He said that the responses he got from their legal eagles were almost petulant -- we don't care that we have no intentions of making any money off this stuff -- we don't want YOU to do so either. (Even though his compensation in this case amounted to a handful of small donations that users sent to help support his site.)

    So, clearly, this was a case in which attitude and a strict adherence to the letter of the law were far more important than the money involved, which was, on the rights holder's part, nothing, and on the infringer's part, pocket change. While this is hardly directly analogous to the Viacom-YouTube situation, it does demonstrate how it's not always about the money. To repeat, if Viacom was smart, they would just seek a big licensing payout from Google and be done with it. But, for all we know, Viacom's masters may be anal, set in their ways, and motivated by the notion of an affront more than anything -- this is OUR material -- how DARE they use it -- we're not going to be forced into a deal with them even if it means a big profit for us -- WE will control who uses our stuff.

  • by pixelm (1077253) on Sunday March 18, 2007 @11:21AM (#18394263)
    Viacom is not trying to renegotiate the DMCA - Lessig is. And he's trying to persuade the Supreme Court to agree with him. The DMCA protects passive storage - think web hosting companies. 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. Lessig argues that the court in Grokster was wrong because it found a technology to be bad. It didn't. P2P continues on - its a platform for telephony (Skype) and even licensed television (Joost). What the court found is that if you write a business plan that says "let's find out where burglars hang out so we can fence their stuff" you have crossed the line from a second hand store to a co-conspirator. Viacom argues that YouTube should do what it can to eliminate known infringements - what's wrong with that? If you put yourselves in the shoes of any artist - how do you feel when someone is profiting from your stuff without your permission? And how could you possibly police every company that sets up a user-generated content site? Viacom's not asking for YouTube to be shut down - only that it act responsibly. If you're constructing a building and cause damage to the building next door - you fix it and keep on building. Doesn't seem unfair.

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