A Law Professor's Opinion of Viacom vs YouTube

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."

Anlogous to Slashdot vs Scientologists

[CrazyJim1]

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.

Re:

[foodogfoo]

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.

Re:

[russ1337]

I'd like to take this one step further.

I'd like to see people cut and paste full articles and copyrighted works into comment sections onto Viacom's (or their subsidiaries) pages. They are then guilty of what they are blaming youtube for.

Perhaps excerpts of code that SCO or Microsoft are laying claim to, in an effort to draw them all in to a war of attrition. Of course the poster of such content might want to do it as "anonymous coward"

Pawn Shop versus Fence.

[goombah99]

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.

Re:Pawn Shop versus Fence.

[mike2R]

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.

Re:

[Dausha]

'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.'

Just to chime in with you. The Constitution gives Congress sole authority to say what is a copyright infringement. SCOTUS has judicial authority under the Constitution, but that authority itself ha

Re:

[Antique Geekmeister]

Google took on the responsibility of censoring content for the Chinese government (http://www.breitbart.com/article.php?id=D8FBCF68 6 &show_article=1, and numerous other articles on it). The question is thus not whether Google can censor: the question is *how much* they'll do it.

Google gave up the righteous stance of being unwilling to censor when they went along with political content censorship: the decision will haunt them in this and similar situations, where the content doesn't have the protection o

Re:Anlogous to Slashdot vs Scientologists

[OECD]

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.

Re:Anlogous to Slashdot vs Scientologists

[TubeSteak]

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.

Re:Anlogous to Slashdot vs Scientologists

[sumdumass]

No, Google and Youtube doesn't have the ability to screen copywriten works. And here is why.

I give you and only you the permision to repost anything I have writen on slashdot and hold an automatic copywrite over. How is anyone supposed to know you have permision as aposed to someone else not having permision? Currenty, the person who can give permision has to say "hey, you don't have my permision" then goto the appropriate chanels to get the content removed if and when the user doesn't.

Now suppose as part of the user agreement to Youtube, It says you post only what you have copywrite to or permision to use from the copyholder. How are they going to verify the copyright is theirs or that the user has permision to use it? They need to contact the copyright holder. But the copyright holder isn't always clear when the posting consists of a few clips of some obscure show or scenes from some show that doesn't readily make it obvious what the show is. Are they now supposed to have a team of people that reviews every show, movie, song, book, whatever else that can be copywriten in order to scan ever file uploaded in order to see if it is someone elses and how to contact them to verify someone has permision?

It is the copy owners job to determine if their work is being used against their rights acording to the right given by the copyright. It is there job to give notice and request it stop. Google having some op in service is a way for the copy owner to let google/youtube know who does and who doesn't have permision to use a certain piece of copywriten work outside of someone saying they have the right to do so.

Re:

[TubeSteak]

No, Google and Youtube doesn't have the ability to screen copywriten works. And here is why.

Reality seems to contradict your words.
Youtube can screen uploads, but don't take my word for it.
http://www.google.com/search?&q=youtube+filtering+ licensing [google.com]

They are doing it for media companies that have licensing agreements with them.

I give you and only you the permision to repost anything I have writen on slashdot and hold an automatic copywrite over. How is anyone supposed to know you have permision as aposed

Re:

[sumdumass]

The licensing agreements are letting google know who does and who doesn't have permision or right to use the work. It also lets those companies declare what works are theirs and needs to be covered. It gets around all the limitations or impossible situation I previously discussed.

The difference under the licencing agreement is that you tell them once (unless something has changed), Google takes care of the rest. And thats the benifit of it. Google has agreed to take your position concerning the copyrights t

Re:

[tgibbs]

That is a straw man argument of your own creation and is utterly irrelevant to the situation at hand. We're not talking about Slashdot.

In what way is it a strawman? Currently, there is no central registry of who has permission for what. So how is the operator of a web site supposed to verify whether a user's representation that they have authorization to post something is true or false? Only the copyright holder has knowledge of what rights have been granted to whom.

And who is liable for mistakes? It makes

Re:

[kripkenstein]

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

They always had the capability. They could have, in 1998, made posting a video have to pass a 'moderation' step (performed by human beings).

Yes, such a set would be costly, and yes, it would be prone to error - but so is their current technological solution (perhaps less costly, but still - not cheap in any way!).

How does that work, anyhow?

[phorm]

I haven't really heard much on the details of this, but I figured that it was basically a case of:

"If you're willing to pay us, we'll assign you a person/team who will be dedicated to checking out infractions on your IP"

I'm not sure google's the one to do this though, but perhaps a proper solution to the problem would be to have an independent party that could investing/delve copyright violations, paid by both the media companies (such as viacom) and those providing various services online (google-youtu

Re:

[PastaLover]

What nobody seems to mention anywhere is that copyright companies are already responsible for protecting their own copyrights and have been pursuing copyright cases offline with great success for years. It's made them rich even. I'm not anti big government or anything, but I see up to a certain degree one should be responsible for protecting his own "property". It's not like Viacom et al. don't have the money to do so.

It's funny. Laugh.

[Short Circuit]

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...)

Re:

[WgT2]

But 20 months ago, the Supreme Court reversed this wise policy of deference.

Awwwww... and who says activist judges don't legislate from the bench?

Re:

[geminidomino]

Yeah. Damn those judges. How dare they do their goddamn job?

Re:

[account_deleted]

Comment removed based on user account deletion

Re:

[lightsaber777]

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.

Re:

[sconeu]

An Op/Ed piece on the same subject [latimes.com] in the LA Times.

Digital Rights Act

[geekbeater]

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.

Re:

[rm999]

It's more complicated than that. From the economist:

"The legal situation is ambiguous. At issue is America's Digital Millennium Copyright Act, which became law in 1998, when Google, founded that year, was unknown and YouTube did not exist. It includes a "safe-harbour" provision for anybody who removes copyrighted content as soon as the owner requests it.

YouTube has been doing that--most notably a month ago, when Viacom demanded that 100,000 clips be taken down. But the safe-harbour clause applies only as lo

Re:

[yuna49]

I browsed a few videos on YouTube and was surprised to find no advertising appeared. (I made sure AdBlock was turned off just to make sure.) I think if Google were to begin carrying ads on YouTube the Grokster decision would become relevant, though not necessarily determinative. In that decision the Court held that Grokster both profited directly from the violation of copyrights that it enabled, and also that Grokster's marketing strategy specifically encouraged the use of the service to violate copyright

Re:

[Altus]

Is format shifting really modification of content? I mean my tv signal comes in in NTSC and my DVR trans codes it to mepg. Has it really changed the content?

I don't care what Nicolas Negroponte says... the medium is not the message. The content is the content and you tube isnt really materially changing it.

Re:

[yuna49]

Yes, it might be argued that format shifting constitutes a "derivative work." See http://www4.law.cornell.edu/uscode/html/uscode17/u sc_sec_17_00000103----000-.html [cornell.edu].

Re:

[Altus]

well, im no lawyer so I cant really argue law, but this doesn't seem to pass the common sense test to me. I mean if you published an E-book (all text), and I made an ascii copy of the content of that book would that really be a derivative work?

Still, thanks for the link, interesting reading.

Re:

[Altus]

A further thought occurs.

If you tube simply provided an off line converter for people to convert there files to the proper format for you tube before uploading them would they suddenly be off the hook since they are not the ones doing the conversion?

   

Re:

[yuna49]

I'd opine that such a strategy would make YouTube even more liable under the Grokster decision since they could be charged with encouraging copyright infringement.

Trias politica

[remmelt]

You better be thankful that the courts do "make law" as you describe it. Laws passed down by the government can never take into account all the circumstances of your specific case. They hardly ever see how the law may be used or avoided, even though the law making process takes so long.
All laws are judged in a public court, and mostly impartial judges are there to see if your case fits the law in question or not. This is the way the trias politica works, and it works well. What's sometimes even more importa

Re:

[cpt kangarooski]

i.e. the right to privacy allows you to kill a fetus??? Whatever side of the issue you are on in that...that is just terrible jurisprudence.

Not especially. The right of privacy allows you to make medical decisions concerning your own body. That's one of them. The only thing that makes it particularly different from deciding whether to have a tooth removed is that after a certain point the fetus might be a premature but viable infant, permitting the mother to stop being pregnant without having it die. With i

Re:

[jfengel]

Arguably, this has already happened. Just a few weeks ago doctors managed to save a 22-week fetus, which is well before the 28-week limit that the Supreme Court somewhat arbitrarily imposed in Roe v. Wade.

Don't get me wrong; I'm actually very pro-choice. But the difference between viable and non-viable life is getting very, very blurry.

(A word of advice, BTW: be careful with expressions like "The death of the fetus is just an unfortunate side effect" when discussing this with people who don't agree with yo

Wrong arguments....

[zappepcs]

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:

[Telvin_3d]

The major issue with what you are saying is that YouTube is a distribution model, not a production model. Once the TV stations are gone, who pays for the shows to get made? Who foots the bill for $100,000+ episodes? If YouTube wins, it may be a good thing for free speach, but it might also be the end of one of the most powerful sources of entertainment ever created.

Re:

[heinousjay]

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.

Re:

[sumdumass]

Maybe this is just like the pixies in the buble gum forest. If you don't believe hard enough you won't see them.

Re:

[Telvin_3d]

As someone who has been involved in small scale DIY productions, I have to thank you. I have not laughed this hard in a while. Your sarcasm is truly breathtaking. ... it was sarcasm, wasn't it?

Re:

[OECD]

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!

It's already available:

• Starship Farragut [youtube.com]
• Chad Vader [youtube.com]
• Star Trek vs. Batman [youtube.com]

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.

You can find that stuff too.

Re:

[Rakarra]

For God's sake, mod this up to 5.

Re:

[zappepcs]

Here is how I see it happening: First, aspiring film makers and video stars will work to get 'discovered' via their work on YouTube. Second, some shows that 'production model groups' won't put on TV will get aired via YouTube (first as an experiment, then as a shared revenue model with YouTube). Third, more popular 'free agent' content makers will get corporate sponsorship, just like you see for sport figures etc. Fourth, syndication mash-ups will garner sponsorships for presenting channeled content from Yo

Re:

[Telvin_3d]

All of this is a nice dream, but there are a few issues. First, you are still assuming that TV is going to be around as the cash backbone of the production industry. Going through your four point first paragraph;
1 - Aspiring filmmakers and video stars discovered on YouTube. Discovered by who and for what? If YouTube and direct distribution win over the traditional methods (which is inevitable), who is going to be discovering these people and who what? Yes, millions of people on the internet will happil

Re:

[yuna49]

You need to add another zero to that figure for prime-time shows (see http://www.axcessnews.com/business_082005.shtml [axcessnews.com]).

Re:

[cooldev]

What you are forgetting is that the lack of copyright will reduce the incentive for people to create new material.

If YouTube is successful and sets a precedent, I hope you are happy with watching reruns for all the stuff created between ~1900-2007, because everything else will likely be created by India and China, with serious DRM protecting their content.

Re:

[richie2000]

What you are forgetting is that the lack of copyright will reduce the incentive for people to create new material.

Here's an offer you can't refuse: Show me one single independent academic paper that conclusively proves this thesis and I will Paypal you $50 USD.

(The reason I can offer you this wager with impunity is because I can link to close to a dozen academic papers, in various languages, proving the opposite. Here's my favourite, in Swedish: http://www.ulfpettersson.se/2006/06/27/upphovsratt en-som-incitament-en-inkomstanalys-av-kreativa-yrk en/ [ulfpettersson.se])

While you Google your life away, ponder this: When the US had a copyr

Re:

[cpt kangarooski]

There is nothing slave-like about it at all. No one is forcing artists to do or not do a particular thing in such a relationship. But no one is going to pay good money for a displeasing work of art. In the modern world, a publishing artist might need to satisfy thousands or millions of customers. Where the artist receives patronage, he only needs to satisfy the patron. It's the same thing, but with a much smaller audience and more targeted approach.

Plus, of course, many works of art are created under this r

Re:

[mpe]

There is nothing slave-like about it at all. No one is forcing artists to do or not do a particular thing in such a relationship. But no one is going to pay good money for a displeasing work of art. In the modern world, a publishing artist might need to satisfy thousands or millions of customers.

The task might be to convince a publisher that the work will satisfy a huge number of people. It isn't uncommon for what turn out to be very popular works to have had a difficult time getting published in the firs

Re:

[richie2000]

Do you even understand why the USPTO was created?

To regulate congress' and the constitution's goal of promoting the sciences and the useful arts. They have failed miserably, don't you think?

you will find a wealth of economic professor papers on this symbiosis between incentive and creation in _any_ Industry.

Ah, but are copyrights (and patents, for that matter) actually incentives, or are they barriers? The answer to THAT question may surprise you.

The Computer Science and Telecommunications Board (CSTB) of the National Academy of Sciences writes in their report The Digital Dilemma: Intellectual Property in the Information Age:

Recommendation: The committee suggests explor

Re:

[mpe]

To regulate congress' and the constitution's goal of promoting the sciences and the useful arts. They have failed miserably, don't you think?

It's even arguable if "sciences and the useful arts" was intended to cover "popular entertainment" in the first place.

Ah, but are copyrights (and patents, for that matter) actually incentives, or are they barriers?

Things can be even more obvious with patents, where there are examples of patents stopping basic scientific research. At least part of the problem appe

MOD PARENT UP

[nickos]

Best post in the thread so far - that's a brilliant quote from the CSTB, and you can never go wrong with The Economist.

Re:

[richie2000]

Do you even understand why the USPTO was created?

BTW, I forgot this: The USPTO does not even handle matters of copyright. The Copyright Office [copyright.gov] does.

Re:

[mpe]

What you are forgetting is that the lack of copyright will reduce the incentive for people to create new material.
It's an assumption that having copyright acts as such an incentive. With very little actual evidence that this is actually the case. Even if you could prove this you'd also have to find the optimal copyright term for this to happen.

Ironically

[eclectro]

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.

Re:

[limecat4eva]

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.

Re:

[Hal_Porter]

Yeah, but at least we can still watch Jon Stewart mocking Bush on YouTube. Get some priorities man.

Re:

[VGPowerlord]

Yeah, but at least we can still watch Jon Stewart mocking Bush on YouTube. Get some priorities man.

Not if Viacom keeps asking Youtube to pull them down... particular if Youtube isn't pulling them, as they can then be found liable under the DMCA for not complying with takedown requests in a timely manner.

Re:

[Anonymous Coward]

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

Re:

[Antique Geekmeister]

I'm not young. And Iraq is becoming the new "Godwin's Law" in electronic discussions.

But the young'un has good points on every single issue he or she raised. Look again at those issues if you can find time: even the Canada soft timber one was a solid gripe. Complaining about government subsidies in a trade partner is great, but the US lost the court cases on this 3 times and imposed an illegal tariff in direct violation of NAFTA as punishment. Then when the US lost its case in the WTO about tax breaks for c

Re:

[sumdumass]

I just looked at the sources again as documented by the WTO [wto.org] It apears that the dumping evaluations were considered normal under other WTO policies but had been stopped recently when the issue started going in front of the pannel. In fact, the pannel originaly found for the US, and later, canada had it reversed on appeal. But that isn't the interesting part.

The interesting part is that the pannel made it's determination by 2004. But acording to the same report, On 12 October 2006, the United States and Canad

Re:

[king-manic]

Do you mean when the tarrif that was put in place because canada was subsidising their lumber industry and allowing them to undersell american mills like the chinese and japanese did witht he steal industry durring the previous decade when it colapsed?

On this particular point you are wrong. WTO ruled there was no subsidy. The difference between the two industries aren't government subsidies but entirely different models. Canadian logging companys pay less to log on crown land then US logging do for a simili

Re:

[Myopic]

They're about as forgettable as the appointments which paved the way for Roe v. Wade. Bush's appointments will be infamous for fifty years of abortion prohibition, starting in about two or three years. Our granddaughters will be having coathanger abortions, decades after everyone stops talking about the Iraq war.

Re:

[PastaLover]

He quite possibly meant reign [reference.com] but the sentence doesn't really make sense either way.

Who didn't see this?

[shrapnull]

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.

Re:

[heinousjay]

Empower is a word I can agree with in this context, but enslave? We are talking about entertainment here. Let's not pretend that if we were to lose TV clips on the internet our entire world would suddenly be under the control of some corporate master. Hell, it might mean people would leave the house more often.

Re:

[Petey_Alchemist]

"The real issue at hand is that copyright law is in complete disarray today"

Tell me about it.

We have extensions left and right. Fair use and the first sale doctrine are slowly disintegrating.

Someone needs to remind Congress and the Courts that the point of the intellectual property system is not to set the terms under which the public may redistribute artistic work, but rather ensure that the artist gets some renumeration.

"To promote the progress of science and useful arts, by securing for limited times to

Re:

[VGPowerlord]

I'm surprised you didn't mention that laws are also eroding the "limited time" part of that directive.

Right now, if I were to self-publish a book right now, and I live for another 50 years, that book won't enter public domain until 2127 (2127 is not a typo). If I were to sell it through a publisher, it still wouldn't enter public domain until 2077.

That number will increase the next time Disney... er... I mean Congress entends copyright.

Re:

[zootm]

But this isn't even about fair use! Fair use doesn't even protect YouTube here - they do not have a good fair use case for the use of the content. What they do have, though, is a provision in the otherwise-horrid DMCA which says specifically that they are not responsible for the content posted by users, they just need to take it down when asked. That's what's under debate here.

WWSVD -- What Would Siva Vaidhyanathan Do?

[haaz]

Yes, what would Siva Vaidhyanathan [slashdot.org] do?

This and the whole filesharing thing...

[wile_e_wonka]

...trying to stop these is like trying to stop the Missouri River. Give up. People obviously want this technology; give it to them, and figure out how to make money from it.

Re:

[Antique Geekmeister]

Really? Tell that to New Orleans, where they're fairly successfully stopping the Mississippi, and tell it to the Dutch, who've successfully stopped the Atlantic Ocean.

It's amazing how long you can succeed in holding back something "unstoppable". It's not always successful, but people can and do live their entire lives in the areas at risk.

Re:

[wile_e_wonka]

Ummm--last I checked the Mississippi still hits the ocean. New orleans may have gotten the river to go around them (though the blockade was unsuccessful at holding back the ocean), but they certainly didn't stop the river.

My analogy holds!

Lawrence Lessig, familiar name?

[Talennor]

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.

Re:

[TodMinuit]

Big in the "Free Culture" movement and writer of the phrase "code is law". Slashdotters should recognize this name.

So they should have introduced him as, "Lawrence Lessig, a bias law professor"?

Re:

[Bodrius]

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

Congress polices constitution; Courts make law

[evought]

Great, so SCOTUS remands Constitutional issues (copyright extension) back to Congress, and then wrests legislative power away from them. Dubya sets up his own judicial system in Gitmo. Soldiers playing cop in Iraq. FBI playing "secret agent" at home. The Patent and Trademark Office weighing in on National Security. WTF? Next thing you know we'll have corporations determining foreign policy.

Re:

[Taleron]

Next thing you know we'll have corporations determining foreign policy.

Yeah, no kiddi- ohhh, wait...

Re:

[SleepyHappyDoc]

Next thing you know we'll have corporations determining foreign policy.

They're not already?

The problem is volume

[edwardpickman]

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.

Re:

[grmoc]

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

Re:

[stubear]

"The market wants a more dynamic approach to content acquisition."

"The market wants content for free." There, fixed that for you.

Re:

[rhizome]

Well they are effectively asking the copyright holders to police their site.

Which is the way it's always been. I doubt that a single copyright infringement case has ever been initiated by the defendant.

And, as others have pointed out, the DMCA lays out Viacom's responsibilities quite clearly.

Re:

[Myopic]

You are right in general. Specifically, one quarter of TV is commercials, not half. One quarter is still about five times more than I am willing to tolerate.

But you know, the thing I don't understand is, why isn't the TV industry embracing the new business models made possible by the internet? When TV was invented, companies that previously made radios switched to making TVs, because that was pretty obvious. So, why doesn't Viacom just make their own YouTube and profit like mad? Are they just pissed off lud

YouTube Summer of Art?

[zotz]

"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!

Video hosting is expensive and laggy

[phorm]

Yeah, one thing that youtube covers that a lot of other storage/transfer media do not: media hosting is expensive!

You could run an http server and put up your video there. However, if it becomes popular, then you will have your bandwidth/server swamped and possibly offlined

You could post it as an indirect p2p link, such as from aMule etc. At first it's going to be slow and a drag on your servers (until a few other people snag parts/copies), but if it's popular at least you won't take the main load. Howe

Grokster is in favor of YouTube

[Petey_Alchemist]

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.

Re:

[julesh]

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 legislat

Re:

[Petey_Alchemist]

Bizarrely, you're right :)

Lessig is an incredible figure in the field, but I think in this case he is misreading the law. I was amazed when Grokster came out, because it split hairs with incredible precision. We're not revisiting Sony, but we will show you that you can't get away with living by thievery. I don't see how that created new law--it just refined a previous decision.

My biggest fear is that, since Congress has shown itself to be of a generation that does *not* understand *our* Internet paradigm, t

Horrible Characterization of Grokster

[IanDanforth]

Having sat in on the oral arguments and read the decision I can tell you that the reason the court was unanimous in ruling against Grokster had almost nothing to do with the technology. There was clear evidence that the founders created a business model expressly to allow copyright infringement. It was, in fact, a fairly narrow ruling that did not condemn any underlying technology, but made clear that there was a responsibility of business to respect copyright, and that knowingly enabling piracy for profit

Re:

[yuna49]

I don't see how they could have won this case. "Limited" means exactly that. SCOTUS deferred to Congress to determined how long a "limited" copyright should be. How could they have ruled otherwise constitutionally? It's unfortunate that "limited" could eventually mean life of the author plus 999 years, but it's still "limited."

However, I think your interpretation of Grokster is spot on.

If Viacom is Smart...

[Stanislav_J]

...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 t

Larry's off base (again)

[pixelm]

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 wron

Re:

[hey!]

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

Re:

[petrus4]

If you put yourselves in the shoes of any artist - how do you feel when someone is profiting from your stuff without your permission?

The only problem with trying to use this line of reasoning is that the media companies themselves don't give a shit about any artist; I'm sure you've read about the worst case scenario where musical artists will see 2 cents in every dollar from CD sales. The only people media companies care about are themselves. The reason why they try and claim that they care about artists

This is the punishment we get ...

[argoff]

... for trying to make copyrights work. After all, we never take the position that copyrighrs are shit and that we have a right to do whatever we can do to defy them, No, instead we take the position that they are some type of kind benevolent tyrrany that can be overcome if we just all try to get along. Well, bullshit. Copyrights are to the information age what slavery was to the industrial revolution. The people who want everyone to "just get along" are evil in ways that we can't even imagine.

Lessig would know more than me but...

[BitwizeGHC]

... it seems that Congress is in Big Media's back pocket (see: Sonny Bono Copyright Extension Act), so any onerous copyright provision implemented by the judiciary would have been backed up by Congressional legislation anyway.

Re:

[VGPowerlord]

Indeed. He is also well known for being lead counsel in Eldred v. Ashcroft [eldred.cc]. For those of you who don't know, Eldred v. Ashcroft was an attempt to get the Sonny Bono Copyright Term Extension Act overturned for, among other things, being unconstitutional. The appropriate text from the constitution is thus

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.

Alas, SCOTUS did not agree, which

Re:

[Antique Geekmeister]

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.

Re:

[Siguy]

Your argument would make sense if youtube just had obscure and unknown copyrighted clips showing up. If it were just random BBC shows no one has heard of. But when episodes of South Park, the Simpsons, Family Guy, etc etc show up, no, you do not need a set of lawyers to figure out what's going. And I'm not even talking about video mashups and parodies and other gray areas. The fact is that Youtube makes no effort to block completely obvious copyright infringement when they already clearly have the capabili

Re:

[Pastis]

I believe it's much easier to block porn for the following reasons:
- it's probably easy to automate its recognition looking at the sound and video patterns, probably a very very high number. Then ban the offenders.
- people will flag it as inappropriate content
- the ones that still go through probably get viewing patterns that are specific to porn (i.e. there's probably a rush...).

Anyway that makes porn an easy thing to identify.. Now go and pick a random show...

The youtube problem would be the same for a po

They don't

[phorm]

While they do a good job, they do have the odd porn etc pictures that pop through. Further to that, it's quite a bit easier to spider out and filter the porn sites itself. A lot of them would have (but law) the 18+ entry page), they have plenty of keywords that could be filtered to pop up a red flag, etc etc

Other than the entered title/description, there isn't much that can flag something as a copyrighted video. Porn is easier.

If you want to see google's failed efforts to filter, check out the sites tha