Op-Ed Page Duel: Lichtman For Viacom, Lessig For YouTube
Before Viacom’s $1 billion lawsuit against against YouTube comes close to a courtroom, law professors Doug Lichtman (University of Chicago) and Lawrence Lessig (Stanford) have taken their arguments to the op-ed pages of the LAT and NYT, respectively:
In his LAT’s op-ed, Lichtman, who is part of Viacom’s legal team, lays out his view of the case in pretty basic terms: not only has YouTube has been a haven for unlicensed content from the very beginning and not only does Google know this, it exploited continues to develop ways for users to violate copyright protections. Additionally, Lichtman provides a preview of what arguments in the case will look like. The case is expected to center on interpretations of 1998’s Digital Millennium Copyright Act.
Lessig argues that the statute says “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 website.”
Lichtman contends those issues are trumped by the Supreme Court’s 2005 decision in favor of movie studios against Grokster, which found that companies that actively encourage infringement are ultimately responsible for their customer’s illegal activity: “The question of exactly which precautions the law should demand of Grokster and related services was a difficult one. The question of whether Grokster’s ill-motivated founders should be allowed to play any role in establishing those rules, by contrast, turned out to be embarrassingly straightforward.”
Related:
—Viacom and YouTube’s Dance Around: History Through Links
—Viacom Sues Google-YouTube: Wants More Than $1 Billion In Damages, Injunction
—Our Coverage: Grokster vs MGM, Brand X Case
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Comments (2)
Mar 20, 2007 3:22 PM
I think that Lessig is missing a key point. He writes, “As the [DMCA] 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.”
He does not consider the question of what happens when a copyright owner does not have the means or ability to locate his copyrighted material on a web service protected by the DMCA safe harbor provisions?
Consider paragraph 43 of the Viacom complaint: “YouTube offers a feature that allows users to designate “friends” who are the only persons allowed to see videos they upload, preventing copyright owners from finding infringing videos with this limitation. YouTube has also recently limited the search function so that it identifies no more than 1,000 video clips for any given search. Thus, for example, if there are several thousand infringing clips from the “South Park” series on YouTube, the limitations YouTube has placed on the search function may prevent Plaintiffs from identifying all of the infringing clips. In that case, even if Plaintiffs send takedown notices for the video clips they have been able to identify, and even if YouTube responds to the notices by removing those videos, many more infringing videos from the South Park series will still be available for viewing on YouTube. Thus, Plaintiffs cannot necessarily find all infringing videos to protect their rights through searching, even though that is the only avenue YouTube makes available to copyright owners. Moreover, YouTube still makes the hidden infringing videos available for viewing through YouTube features like the embed, share, and friends functions. For example, many users are sharing full-length copies of copyrighted works and stating plainly in the description ‘Add me as a friend to watch.’”
While “the burden” of monitoring a web site for copyright infringement may statutorily rest on the copyright holder, I think there’s an assumption built into that requirement that the copyright holder has the ability to actually do such monitoring. It seems only too easy for YouTube to avoid liability by allowing people to put infringing material on the site and then hide such activity from the rightful owner. I think it’s a logical flaw in the DMCA, and it’s the kind of logical flaw that an appellate court will have to examine, should this case get so far.
Mar 20, 2007 3:50 PM
Lessig out to be shipped to some commune so he can work with a few brain washed followers on why we do not need copyright laws - the very impetus for creators to produce good works, and in turn grow the economy - real jobs, not social welfare on his copyright infringing commune. This guy makes a lot of noise, but could never finish an argument when it came to debating the copyright holders. Last time I saw him debate - Jack Valenti, the former head of the MPAA took Lessig’s own book and showed him how he contradicts his own thesis (if you want to dignify Lessig’s ramblings as such). There he is again, in a Law School faculty, where his views a.k.a. ramblings get a bit of press time with the yet to be indoctrinated students - who will soon have to go get real jobs created by the very economy, he espouses to destroy. LAWRENCE OF PIRATES!