Why Do People Keep Insisting That Google Has A Better Idea What's Infringing Than Viacom?

Legal Issues

from the bizarre-reasoning dept

When a piece on copyright law is written by a “former commissioner and vice chairman of the U.S. International Trade Commission” and the “dean emeritus of Boston University School of Law and chairman of the Center for the Rule of Law,” I would expect that the reasoning would make a lot of sense, but I find myself quite troubled by what Ronald Cass claims in a recent Forbes article about the Google/Viacom battle concerning YouTube. Basically, Cass seems to repeat all of Viacom’s talking points and not consider the actual facts of the situation. It’s very strange. Perhaps he is only taking a superficial look at the facts. Let’s help him out.

Disclosures of internal e-mails portray YouTube as a business designed, operated, and marketed to make money from users unlawfully posting copyrighted material (pirated clips from Saturday Night Live and The Colbert Report, for instance). YouTube founders knew their site was carrying “truckloads” of pirated material. Steve Chen chastised fellow cofounder Jawed Karim for putting up “stolen videos” himself, adding, “We’re going to have a tough time defending the fact that we’re not liable for the copyrighted material on the site . . . when one of the cofounders is blatantly stealing content from other sites and trying to get everyone to see it.”

This is the money quote that Viacom and its defenders keep repeating. But it was taken totally out of context. The discussion, when put back into context, shows clearly that Chen and Karim were not arguing about copyrighted material like “pirated clips from Saturday Night Live and The Colbert Report,” as Cass claims, but about viral videos from other online video sites that were like YouTube.

Google spotted the piracy problem early on. Its executives contrasted YouTube’s encouragement of copyright violations with Google Video’s screening to find and remove the most likely violations. But piracy proved the more successful business model, and Google ultimately swallowed both its scruples and YouTube, buying the site for $1.65 billion.

Indeed. And no one denies that there is a ton of content on YouTube that violates copyrights and is being used in an unauthorized manner. What no one has been able to explain — certainly not Viacom nor Cass — are how anyone other than the copyright holder could possibly know which content is authorized and which is not. Even Viacom’s own partner, BayTSP, compared Viacom’s rule book — which changed every few days — of what was authorized and what should be taken down to Crime and Punishment. And yet Cass and Viacom think that Google should “just know” what’s infringing?

Viacom’s claims are rooted in mainstream property rules and liability rules. Property rules give people rights in things they’ve created or bought, including the right to keep anyone else from using it without their consent. You can’t take a bite of someone else’s burger or swipe one of their fries as you walk through a restaurant just because you think it looks really tasty; you don’t have a right to grab what isn’t yours. Liability rules make it illegal to act in ways that put other people at risk when there are reasonable ways to protect them, like construction companies warning folks nearby when they’re going to be blasting.

This is really incredibly wrong, and surprising from a supposed expert in “intellectual property” law. Copyright law, specifically, developed independently from property and liability rules, because it has an entirely different purpose. Property laws are about figuring out who possesses ownership of a scarce item. Liability laws are about who is responsible for putting others at risk. Copyright is about promoting the progress of science and the useful arts. Saying that it comes from the same place is just blatantly wrong. Copyright is not about liability or property — it’s a monopoly privilege granted to certain people for the sake of increasing the incentive to create.

Ideas and creative work, the subjects of intellectual property (IP) law, aren’t exactly like other things. Ideas can be used without being used up, but innovative and creative work often are tremendously expensive to create and hard to protect, which is why IP law resembles ordinary property and liability law.

He’s right on the first part, but wrong on the latter. IP laws resemble property and liability laws only due to the work of lobbyists who have worked quite hard to change the very nature of copyright law far, far away from its intended purpose.

Supreme Court decisions in the 1984 Sony case and the 2005 Grokster case frame the rule on IP liability. Sony wasn’t liable for copyright infringements by people using its Betamax video recorders because most Betamax use didn’t infringe copyright and Sony had no relatively easy way to police infringement. Grokster, however, was liable for infringements by users of its peer-to-peer file sharing software because it promoted infringement as the use most likely to be made of its product.

This is such an extreme misreading of both Supreme Court rulings that it again seems to come straight from the Viacom talking points. The basis of the Sony Betamax decision was the “substantial non-infringing uses” of the technology — something that is also true of YouTube. I’ll note that Cass totally ignores that after Viacom took down 100,000 videos which it claimed were infringing (some, it later admits, it was mistaken about), Viacom expected traffic to YouTube to drop, since it believed that it was its content that kept YouTube going. But traffic grew. Oops. It is true that part of the Grokster decision was because it had some ability to police infringement, but the key to the Grokster ruling was the direct inducement by Grokster in suggesting users infringe.

The question of ability to police was not central to either ruling — but is central to this case. And, again, Cass totally ignores that whole Crime and Punishment list of rules that Viacom had, and the fact that Viacom worked very hard to put up content on the site that looked like it was infringing when it was really authorized. Why would he ignore that and misrepresent those two other cases?

Information disclosed so far puts YouTube-Google in jeopardy on both property and liability claims. YouTube facilitated massive copyright violations and knew it, made a lot of money from traffic built on copyright violations and had relatively easy, cost-efficient ways of monitoring them. In fact, YouTube did monitor but stopped when it became clear just how much of its traffic and revenue were tied to piracy. Google stepped into YouTube’s shoes when it bought the company and turned a blind eye to what was going on.

Again, Cass completely overlooks the facts of the case and misleadingly goes back to “property and liability claims” rather than what copyright law actually says. Why would he do that? The problem, again, is that despite his claims, YouTube-Google did not know what content was infringing and what was authorized. Cass says they could monitor it, but gives no explanation whatsoever how it could possibly know that the videos uploaded by MMysticalGirl8 from the local Kinkos were actually authorized by Viacom.

That’s where the argument for a different Internet law comes in. YouTube-Google and sympathizers like EFF say that the Digital Millennium Copyright Act (the 1998 law Congress put in place to address a set of technology-related IP issues) insulates YouTube-Google.

No, Cass is wrong again. The argument for the DMCA coming it comes at the beginning of this case. Not well into it. Why? Because this is not a property or liability case. It’s a copyright case.

But DMCA isn’t a radical departure from the Sony-Grokster framework, just a specific application to players in the Internet world, spelling out copyright infringing acts and “safe harbors.” Notably, Section 512 prevents liability for a service provider storing infringing material if the provider doesn’t know about it, have information that makes the infringing activity apparent or profit from it, and takes infringing material down promptly when aware of it. The e-mails and other material show that YouTube-Google misses the safe harbor on almost all counts (more like crashing into the dock than sailing into the harbor).

Once again, Cass misses the most basic facts of this case in a troubling way. Google did, in fact, take down material promptly “when aware of it.” The key question — which you’ll note Cass conveniently skips over is what constitutes “when aware of it.” That is the key point that will determine this case, and you would think someone of Cass’s background would know to highlight it. Instead, he hides it.

Google argues that it was not aware of specific infringement, in part because it has no way of knowing whether or not the content is infringing or authorized — especially when Viacom is going through all that trouble to make authorized content look infringing, while also authorizing all sorts of content with a huge and ever-changing rulebook. Viacom, on the other hand, claims that “when aware of it” just means aware in general that there is infringing content on the site.

But such an interpretation of the DMCA would render those safe harbors effectively meaningless. It would effectively say that if there’s any infringing content on your user-generated site, you no longer qualify — even if you can’t figure out which content is specifically infringing and which is not. That makes no sense.

EFF wants to expand the harbor for providers by requiring direct notice of each individual posting of copyrighted work (followed by a decision not to act), reasoning that “take down” incentives under DMCA are enough. This rewrites the law, which recognizes that providers often are in much better position than copyright owners to find violations.

This is wrong on so many levels. The law does not and never has recognized that providers are in a better position to find violations. In fact, the law says the exact opposite. The whole point of the safe harbors is because the service providers can’t really know for sure what’s infringing until they receive notice — exactly as the EFF notes. They aren’t trying to “expand” the safe harbors. They’re just saying what the purpose of those safe harbors has always been.

There’s too much material for an individual right holder to screen, too many “private” sections of sites that copyright holders can’t see (though providers can) and more efficient alternatives for reducing the amount of pirated material on sites that reward piracy.

And he closes with the “but it’s just too difficult” for copyright holders argument. But he doesn’t note that it’s even more difficult for the service providers who aren’t the copyright holders and have no idea if the content has been put up there in an authorized manner or not.

Filed Under: copyright, dmca, liability, property law, ronald cass, safe harbors
Companies: google, viacom, youtube