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.'"

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 [gnu.org]

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: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.

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)/ [wikipedia.org] 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: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: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 [google.com].
(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.

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: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 [wikipedia.org]

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:

[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 [wikipedia.org] 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.