Columbia Law School professor Tim Wu (fresh from a starring turn in Bill Moyers’ documentary on net neutrality) has this excellent essay in Slate on why YouTube is in good fighting shape when it comes to the threat of copyright lawsuits. Despite Mark Cuban’s predictions that YouTube, or Google, its soon-to-be-parent-company, will get crushed by litigation for the unauthorized copyrighted videos it hosts, the law is pretty clear, according to Wu.
The DMCA’s safe-harbor provisions give YouTube fairly solid legal defenses against these suits. All the copyright owner has to do is ask YouTube to take down the content. So long as YouTube is not aware that it’s hosting pirated material, it’s in the clear once it complies with the take-down request.
Everyone knows that. Wu, however, puts the DMCA in historical context, noting that in a battle of titans, the telcos fought Hollywood to get the take-down request provisions in the Act so that they would not be held responsible for the behavior of their customers.
Hollywood employs legendary lobbyists, like Jack Valenti, but when they ran into the Bells, it was like Frazier meeting Foreman. The Bells quickly put holds on all the legislation the content industries wanted. Telecom lobbyists like Roy Neel, a close friend of Al Gore (and later Howard Dean’s campaign manager), went to Congress and began saying things like, the “copyright law threatens to put a damper on the expression of ideas on the Internet.”
Facing stalemate, in 1997 the industries settled on a compromise: something called the Online Copyright Liability Limitation Act, which became Title II of the Digital Millennium Copyright Act of 1998 (§512 of the Copyright Code). It is this law that makes YouTube worth paying more than what you pay for its videos. And its long-term effects have been enormous—you might call §512 the Magna Carta for Web 2.0.
Moreover, Wu points out that Hollywood is conflicted about the rise of YouTube and other sites which, while featuring copyrighted content, also provide priceless promotion and exposure. In some respects, content owners have the best of both worlds — they can benefit from the exposure or they can demand that the content be taken down. This “tolerated use” is a new concept in copyright law.
Stated otherwise, much of the copyrighted material on YouTube is in a legal category that is new to our age. It’s not “fair use,” the famous right to use works despite technical infringement, for reasons of public policy. Instead, it’s in the growing category of “tolerated use”—use that is technically illegal, but tolerated by the owner because he wants the publicity. If that sounds as weird as “don’t ask, don’t tell,” you’re getting the idea. The industry is deeply conflicted about mild forms of piracy—trapped somewhere between its pathological hatred of “pirates” and its lust for the buzz piracy can build.
Cynthia Brumfield at 8:37 AM|Comments(0)
Blogs We Read
