March 18, 2007

The Supreme Court is to blame for the Viacom v. YouTube lawsuit.

According to Lawprof Lawrence Lessig. The 1998 Digital Millennium Copyright Act should have precluded this outrageously wasteful litigation, but the Supreme Court deprived us of the legislative resolution:
Drawing upon common law-like power, the court expanded the Copyright Act in the Grokster case to cover a form of liability it had never before recognized in the context of copyright — the wrong of providing technology that induces copyright infringement. It announced this new form of liability even though at precisely the same time Congress was holding hearings about whether to amend the Copyright Act to create the same liability.

The Grokster case thus sent a clear message to lawyers everywhere: You get two bites at the copyright policy-making apple, one in Congress and one in the courts. But in Congress, you need hundreds of votes. In the courts, you need just five.

Viacom has now accepted this invitation from the Supreme Court.


StephenB said...

We're talking about just this sort of thing in one of my undergraduate classes right now. The courts love to steal an issue from the legislature and hold forth on it before the democratic process has a chance to decide.

Simon said...

I blogged about this here and here. It seems as thought most commenters, (perhaps including Lessig, since he analogizes Grokster) are mistaking this for a contributory infringement action. Pushed for time and assuming the same, I wrote a post talking about OCILLA defenses available to YouTube. But on examination of the complaint, although Viacom does allege constributory and vicarious infringement against YouTube, its principal complaint is a direct infringement claim,which is quite unlike Grokster (and totally unlike Sony), which concerned the "circumstances [in which] the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by third parties using the product."

Simon said...

^ I don't mean most commenters here, I meant in the blogosphere generally.

Zeb Quinn said...

Since the Internet gained currency as a medium of exchange about 15 years ago I've come to the belief that once a property hits the Internet and is freely available there in digitized form --no matter how it got there-- it passes into the public domain. The onus ought to be on the owners of intellectual and other protected properties to safeguard them and keep them by whatever means from getting there.

Simon said...

Zeb - maybe the Blogging Council could seize the opportunity to become gatekeepers not only for the blogosphere, but the whole internet. ;)

Simon said...
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hdhouse said...

Zeb and of course, Simon:

If someone institutes suit to settle a claim, absent clear law or old law, should that plaintiff postpone on the wishful hope that legislation will pass a law and retroactively apply it? Or if the court is forced to decide, should it not and wait for legislation?

There simply are times when the court legislates. This is one. The amount of loss to a Viacom is substantial and YouTube has the tools to prevent it or police it. The onus isn't on Viacom and Simon's logic or ill logic and frankly sophomoric "guidance" ... well...go flip burgers.

Jennifer said...

I'm still not really understanding the material costs to Viacom. Seems more like free advertising to me. I'd think the value of that benefit plus the increased sales from increased interest would outweigh any lost sales.

I know at least in my case, if I want to buy something I will. And if I don't want to, I'll watch it on YouTube or not at all. And, I've bought at least a few albums on iTunes after watching the artists' videos on YouTube.

Jennifer said...

P.S. Isn't it interesting that we seem to be coming back around to the word album as CD doesn't really apply to a set of tracks purchased in mp3 form?

hdhouse said...

I think we should be concerned about material costs to Viacom and to the artists who loose royalties. They are very much cheated.

Your point about free advertising is ok to the extent that one advertises to sell something or a does no one good to advertise a product, even indirectly, and then have it taken from them...not even giving it away.

Joe said...

I am a bit baffled by the claim that Viacom should simply be happy for the free advertising. This ignores the simple fact that YouTube is using that content to sell advertising without paying any royalties to Viacom.

One of the most damning aspects of this case is the allegation by Viacom that YouTube basically engaged in extortion, telling Viacom they would protect their properties only if they signed an agreement very favorable to YouTube. Above all, this indicates that YouTube was consumately aware of what they were doing.

(I happen to disagree with Lessig. It seems he misunderstands the basis of the claims against YouTube. Even beyond that, I think he's wrong. If an entity knowingly acts as a conduit for stolen material, they are breaking the law? Under Lessig's logic, someone fencing stolen diamonds should be immune from prosecution.)

PS. The irony of all this is that I think copyright and patent law have been utterly perverted and we need to completely rethink them, preferably back to a more original intent where knowledge and truth were considered the property of mankind and exclusivity was granted for a short period of time only so the discoverer/originator could recoup their costs.

Simon said...

Joe - contributory infringement is one of the six claims in the complaint, so Lessig's not necessarily incorrect as far as his comments go, they just distort by omission. That said, your question -- "[i]f an entity knowingly acts as a conduit for stolen material, they are breaking the law?" -- raises precisely the question of generality that will affect whether YouTube can claim an §512(c) defense against the contributory and vicarious infringement claims: does YouTube have to be aware that they are being used as a conduit for specific stolen materials (e.g. a specific file: "a clip of 'The Daily Show' 3/14/07, uploaded by user ___ at _:_ _/_/_"), a narrow class of specific stolen materials (e.g. a class of files: copies of 'The Daily Show' 3/14/07, uploaded by various users), or a broad class of general materials (e.g. "some users have uploaded some clips of 'The Daily Show' from various dates"). At a minimum, YouTube has a stronger case than Grokster, insofar as YouTube clearly has significant non-infringing arrows in their quiver, while Grokster - as with Aimster at the 7th Circuit level - struggled to demonstrate that they had substantial non-infringing usage. But again, that's only one aspect of Viacom's claim, which focusses on direct infringement.

Seven Machos said...

StephenB -- I agree in theory. But what's a court supposed to do in the absence of law and there's a case in front of it? This isn't Roe, where the court is overturning perfectly good legislation.

hdhouse said...

7nachos..."what is the court supposed to do?"

Decide. It obviously can't wait. The "loss door" is open. YouTube has the technology to prevent it and interestingly it is YouTube that benefits from the free publicity rather than Viacom.

2 things to consider:

1. there may be types of internet sites that ultimately become commercially forbidden. sites that depend on advertising would dry up instantly or become "pay for" sites if offering the content (not viewing it) wasn't on an "ad revenue based plan". Would you pay to go to YouTube? Would you pay to post there?

2. this site (althouse) clearly represents what sits on the traintracks of future discussions. for instance, ann has had 8 million or so visitors. when it was being served up with either google or doubleclick ads it was netting a couple dollars per thousand viewers...probably less but let's just say $1.00/1000 so the content here generated $8000. No big think but the principle is.

Althouse is a fill in the blank blog. She trots out a topic and on a wide variety of subjects (good marketing appeals to a wide base) JUST LIKE YOUTUBE and waits for others to fill in the content. We gleefully cross promote the site (Simon and his site for instance) and although we supply content and actually carry water to the site ... again the YouTube model...we don't share in the our creative donation is just that.. a donation.

So its our own and our choice but WHAT IF we start posting the intellectual property of others...not gaining permission for "reprinting" or whatever...just blamming it up here. The odd man out is the originator of the protected work.

Point is, absent specific law, there is a great deal to draw on to decide the case fairly. The internet is and IS NOT an automatic exception to ownership of creativity and to treat it as such is a profound disservice to those who create for a living.

Karl said...

It's funny. Everyone is all..."Lessig's wrong, YouTube is totally infringing." or "Lessig rules, Fair Use Forever!"

But, it's all beside the point. The Safe Harbor protection written into the DMCA is law, and Congress knew what it was doing when it shifted the burden to the copyright owners. The DMCA spells out the roles of Viacom and YouTube. YouTube has lived up to its burden under the DMCA. To my understanding, this case is simply about Viacom wanting to change the rules, and they think they have a better shot through the courts than the legislature.

I never thought I'd see the day when someone would say the DMCA didn't go far enough, but I guess that's just the definition of a slippery slope.


Joe said...


If you read the relevent provisions of the DCMA, it becomes very clear that Viacom has a slam dunk case against YouTube. Specifically, YouTube had "actual knowledge that the material or an activity using the material on the system or network is infringing;" Furthermore, they did not remove the material in question upon notice and, worse, received "a financial benefit directly attributable to the infringing activity."

Karl said...


My lemmas.

I've read the DMCA, though not recently. I haven't read the Viacom complaint. As a friend, I have no doubt that Lessig did his research.

"Specifically, YouTube had 'actual knowledge that the material or an activity using the material on the system or network is infringing;'"

They may have had actual knowledge but it isn't specific knowledge until a copyright holder sends a take down request. Google can know (be, say, 99.9% sure) that there is a pirated file on YouTube without checking, but it's certainly not clear that it's their responsibility to ferret them out.

"Furthermore, they did not remove the material in question upon notice"

Really? Is that a part of the complaint, because I find it hard to believe. Are we sure that the material wasn't simply re-uploaded? Given the number of take-downs I've seen processed, I'm lost as to why they would fail to comply with a legitimate request absent a logistical matter.

"and, worse, received 'a financial benefit directly attributable to the infringing activity.'"

Well, that's a dependent claim so I don't think I need to go there...though I think "directly attributable to the infringing activity" is a debatable supposition, based on what type of infringement is alleged.