Why Arguing That Google Is In The Best Position To Stop Infringement Is Wrong
from the it's-not-and-it-makes-no-sense dept
However, I did want to focus in on one particular brief, by law professor Michael Carrier, author of an excellent book on innovation (and how the law interferes with innovation), addressing the issue of "least cost avoidance," when it comes to stopping copyright infringement (pdf and embedded below).
It's one of the key arguments often made by content industry folks in arguing that tech companies and ISPs should be responsible for somehow policing their systems for infringement: that those service providers are in the best position to stop the infringement. For many years, we've always explained why this didn't make sense from a pure liability standpoint. These service providers aren't the ones doing the infringement and thus -- fundamentally -- it makes little sense to pin the liability on a party that didn't perform the law-breaking action. The response from the content industry is often to point to the concept of the "least-cost-avoider principle," which shows up in various aspects of the law, in which courts will sometimes shift liability around to put it on those in the best position to stop the law breaking at the lowest cost. And, in fact, this was found in some of the arguments supporting Viacom.
Carrier's amicus brief does a wonderful job debunking the argument. He does brush over a key point, that I wished got more attention: that it's incredibly unlikely that the service providers really are the least-cost-avoiders in these circumstances, since they have no clue what's really infringing and what's not (as demonstrated by Viacom's own confusions over staff members uploading promotional clips to YouTube...). However, for the purpose of making his point, he goes even further, suggesting that even if it's true that YouTube would be the least-cost-avoider, such a least-cost-avoider makes no sense in the context of copyright and innovation.
The brief points out that least-cost-avoider rules are used in tort law, in particular involving accidents -- which are situations in which no beneficial externalities are created as a result:
In these settings, lowering the costs of preventing accidents makes sense. Accidents do not offer any benefits for society. And the only downside to requiring actors to prevent accidents is that their costs will increase.But that's not the case in copyright law. In copyright law, infringing on copyright may certainly hurt some parties, but it also creates positive externalities and can lead to certain innovations. In fact, entire books have been written on how infringement is often a driver of innovation. Thus, taking the "least-cost-avoider" principle (even assuming it's true, which remains in question) could potentially cause serious harm:
More important, requiring parties to take measures to reduce accidents will not have detrimental effects on third parties. No third parties will suffer collateral consequences if a driver is forced to slow down to the speed limit. Or if a barge fortifies its hull to prevent oil spills. Or if a manufacturer reduces the use of asbestos in its products. In short, the harms from the application of the least-costavoider principle in tort law are observable and do not threaten adverse unanticipated effects across other sectors of the economy.
The least-cost-avoider standard would result in innovative technologies becoming less useful and more cumbersome. Application of such a standard would have made some of today's leading technologies just a shadow of the invaluable innovation they ultimately became. For example, courts could have required photocopier manufacturers to modify their copiers to prevent the copying, absent a copyright owner’s approval, of "any document displaying a ©."The brief goes on to note that, to copyright holders, pretty much every disruptive innovation first appears as some evil form of infringement that must be stopped. Applying this kind of principle would likely have stifled all sorts of beneficial technologies before they could have gotten off the ground.
It is understandable--if short-sighted--to not recognize the benefits of disruption. But it is not appropriate to reengineer the law to block disruptive innovation. The Constitution promotes the "Progress of Science and useful Arts." It does not guarantee that copyright owners are entitled to protect their existing business models against the onslaught of innovation.In other words, even if we assume that service providers are the lowest cost providers of stopping infringement, that doesn't mean that's the best way to "Promote the Progress of Science and useful Arts." There's a lot more in the brief, but wanted to post this as a key piece of the puzzle in responding to claims that it makes sense to put the burden on service providers based on such a principle. While I tend to disagree that service providers are the least cost avoiders in the first place, even if they are, the potential net harm on innovation they can cause should be a huge concern in shifting liability.
The disruptive innovation unleashed by new technologies reveals the difference between tort law and copyright law in the application of the least-cost-avoider standard. There is no legitimate fear in tort law about eliminating valuable activity from society by overdeterring fast drivers or brittle boat hulls filled with gasoline. In contrast, there is monumental concern with stifling disruptive innovations by saddling them with the burdens of copyright owners.