Make Way for Copyright Chaos
 

LAST week, Viacom asked a federal court to order the video-sharing service YouTube to pay it more than $1 billion in damages for some 150,000 videos that Viacom claims it owns and YouTube users have shared. ?YouTube,? the complaint alleges, ?has harnessed technology to willfully infringe copyrights on a huge scale,? threatening not just Viacom, but ?the economic underpinnings of one of the most important sectors of the United States economy.?

Yet as federal courts get started on this multiyear litigation about the legality of a business model, we should not forget one prominent actor in this drama largely responsible for the eagerness with which business disputes get thrown to the courts: the Supreme Court.

For most of the history of copyright law, it was Congress that was at the center of copyright policy making. As the Supreme Court explained in its 1984 Sony Betamax decision, the Constitution makes plain that ?it is Congress that has been assigned the task of defining the scope of the limited monopoly,? or copyright. It has thus been ?Congress that has fashioned the new rules that new technology made necessary.? The court explained that ?sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials.? In the view of the court in Sony, if you don?t like how new technologies affect copyright, take your problem to Congress.

The court reaffirmed this principle of deference in 2003, even when the question at stake was a constitutional challenge to Congress?s extension of copyright by 20 years. Challenges are evaluated ?against the backdrop of Congress?s previous exercises of its authority under the Copyright Clause? of the Constitution, it wrote. Congress?s practice ? not simply the Constitution?s text, or its original understanding ? thus determined the Constitution?s meaning.

These cases together signaled a very strong and sensible policy: The complex balance of interests within any copyright statute are best struck by Congress.

But 20 months ago, the Supreme Court reversed this wise policy of deference. 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. The core of its case centers on the ?safe harbor? provision of the 1998 Digital Millennium Copyright Act. The provision, a compromise among a wide range of interests, was intended to protect copyright owners while making it possible for Internet businesses to avoid crippling copyright liability. As applied to YouTube, the provision immunizes the company from liability for material posted by its users, so long as it takes steps to remove infringing material soon after it is notified by the copyright owner.

The content industry was a big supporter of the Digital Millennium Copyright Act in 1998. Viacom is apparently less of a supporter today. It complains that YouTube has not done enough ?to take reasonable precautions to deter the rampant infringement on its site.? Instead, the Viacom argument goes, YouTube has shifted the burden of monitoring that infringement onto the victim of that infringement ? namely, Viacom.

But it wasn?t YouTube that engineered this shift. It was the Digital Millennium Copyright Act. As the statute plainly states, a provider (like YouTube) need not monitor its service or affirmatively seek facts indicating infringing activity. That burden, instead, rests on the copyright owner. In exchange, the law gives the copyright owner the benefit of an expedited procedure to identify and remove infringing material from a Web site. The provision was thus a deal, created to balance conflicting interests in light of the technology of the time.

Whether or not that balance made sense in 1998, Viacom believes it no longer makes sense today. Long ago, Justice Hugo Black argued that it was not up to the Supreme Court to keep the Constitution ?in tune with the times.? And it is here that the cupidity of the court begins to matter. For by setting the precedent that the court is as entitled to keep the Copyright Act ?in tune with the times? as Congress, it has created an incentive for companies like Viacom, no longer satisfied with a statute, to turn to the courts to get the law updated. Congress, of course, is perfectly capable of changing or removing the safe harbor provision to meet Viacom?s liking. But Viacom recognizes there?s no political support for the change it wants. It thus turns to a policy maker that doesn?t need political support ? the Supreme Court.

The conservatives on the Supreme Court have long warned about just this dynamic. And while I remain a skeptic about deferring to Congress on constitutional matters, this case is a powerful lesson about the costs of judicial policy making in an area as complex as copyright. The Internet will now face years of uncertainty before this fundamental question about the meaning of a decade-old legislative deal gets resolved.

No doubt the justices are clever, maybe even more clever than Congress. But however clever, it?s hard to believe that their input is worth the millions in economic value that will be wasted long before they announce their decision.


Lawrence Lessig, a professor of law at Stanford, is a fellow at the American Academy, Berlin.

Is this the same thing as valuing each song downloaded at $200,000 a piece?

Damn this is very interesting thread. Thanks for posting it.

Muddy waters ahead...

the present DMCA is going to be thrown out the window by any court but the battle is going to take years - so maybe the best option is to let that battle be waged by powerful companies like Viacom and the rest of the copyright owners to go after those who steal who have no protection under the DMCA - the very people who are uploading stolen content - be it the tube site owners and employees themselves or the surfers who do it.

nothing more embarassing for some doofus living in a town of 30,000 people t have his name in the paper and all over the Internet being sued for stealing porn.

This is going to impact the Tube sites big time --if the "safe harbor" provision of the DMCA is restricted by the Court

"Viacom has now accepted this invitation from the Supreme Court. The core of its case centers on the “safe harbor” provision of the 1998 Digital Millennium Copyright Act. The provision, a compromise among a wide range of interests, was intended to protect copyright owners while making it possible for Internet businesses to avoid crippling copyright liability. As applied to YouTube, the provision immunizes the company from liability for material posted by its users, so long as it takes steps to remove infringing material soon after it is notified by the copyright owner.

The content industry was a big supporter of the Digital Millennium Copyright Act in 1998. Viacom is apparently less of a supporter today. It complains that YouTube has not done enough “to take reasonable precautions to deter the rampant infringement on its site.” Instead, the Viacom argument goes, YouTube has shifted the burden of monitoring that infringement onto the victim of that infringement — namely, Viacom."

the 'safe harbor' provision is going to go bye-bye - Viacom's case is indisputable. but the fucking case was filed over a year ago - it will be years, you can't take a case directly to the Supreme Court.

Would be nice if Google got fucked and then all of the Tube sites got shut down by frightened web hosts...

And then.. four years from now a Bulgarian web host owner comes to America for a conference and finds his ass in jail for harboring a criminal site on his servers in a country where they thought they were untouchable... thereby sparking a wave of closing every tube site and torrent site down.

Oh geez! What next?

How did you arrive at that?

A rather large "if" I believe.

I have a feeling if it was as much a slam dunk as you seem to think it is, there would be as much suspense. Why do you think it is indisputable? Because you produce content?

I can be it seen as a burden and denied.

I think that most of this shit is uploaded by the people who own these sites anyway...I mentioned that here:

http://www.gofuckyourself.com/showpo...&postcount=124

Bump for this post

Fuck the DMCA.

No excuse is good excuse to spy on citizens. unless they have _plausible_ and/or _real_ proof, no 123123 years wiretap bullshit.:2 cents:

Huh? ........

5 years on a case like this I bet.

well i would hope not that would destroy the 2.3 trillion dollar fair use economy

and i very much doubt all of those legitimate business would allow themselves to be destroyed

We have gotten together as well, and just like the mpaa we evangalize our position.

The reality is the VIACOM is a distributor not a content producer, they buy their content from smaller distributors and resell it down the chain.

they are trying to extend the monopoly they have in tv broadcasting (CBS) into the internet.


they want to prevent a competitive distribution methodology for the content that they are actually just liciencing.

What do you think DMCA stands for?

There is one guy whose stuff you won't find at Youtube - Prince.

I tried to search something recently then I realized he was about to sue them, as you see - it can work.

The thing is he has a total control over all of his stuff, does own distribution on his own website, plus has already a huge amount of fans, and has lots of money and power.

I also believe Pornwolf mentioned on the other board that if they loose, the original owners of Youtube are fucked because they will be included in covering the settlement.