Brief In Viacom/YouTube Trial Tries To Rewrite The DMCA

from the draining-the-safe-harbors dept

As the Viacom/YouTube trial moves on, it should come as no surprise that a bunch of entertainment industry folks filed briefs in support of Viacom. They’re going to protect their own, even if it means breaking a fundamental key that makes the internet useful (something that will come back to haunt them). Most of the filings echo the twisted claims of Viacom, such as the ones we recently picked apart, based on the totally unsubstantiated claim that Google somehow has a better idea of what’s infringing than the copyright holder. A finding that agrees with that would be a massive rewrite of fundamental liability principles.

However, there’s one filing that people keep sending in over and over again. I was going to avoid commenting on it, but it really is so ridiculous and so factually challenged, that it needs some sort of a response. It comes from the Washington Legal Foundation, a group that claims it’s a champion of free market principles, limited government and individual rights… but then has regularly supported government granted monopolies in the form of copyright that go against the free market and individual rights. Sometimes, you get the feeling that any DC-based “think tank” organization actually stands for exactly the opposite of what they put on their marketing material.

WLF’s filing focuses on the DMCA safe harbor questions in the case:

Like any good attempt to mislead, it starts out accurately. The DMCA was, very much, intended to fight copyright infringement online. But then it begins to subtly rewrite history in a dangerous way. Let’s start with this line:

The DMCA was crafted to accommodate the concerns of copyright holders as well as the interests of Internet service providers. Specifically, Congress sought both to protect the intellectual property rights and to limit the liability of innocent service providers. As the DMCA makes clear, Congress believed these twin goals could best be accomplished by encouraging cooperation.

Technically… true, but extremely misleading. It’s true that it was designed to “accommodate” the concerns and interests of both parties, but that sentence suggests that both sides came together to work out a happy deal for both. That’s not the case. The DMCA was written very much for the copyright holders (hell, it was basically written by the industry). It was because of that, the ISPs then freaked out, when they realized that legislation written entirely by the industry would almost certainly put a ridiculous liability burden on ISPs. So they started making noise and complaining. Because of that, the DMCA’s safe harbors were put in. That was the only way to get the ISPs to go along with the deal. This wasn’t a case of the copyright holders and ISPs working together to come up with a solution. It was the copyright holders pushing for as much as they could get, and then giving the ISPs a safe harbor so that the bill would pass.

… the DMCA was neither adopted nor intended to encourage service providers to exploit the existence of the safe harbors by designing businesses based on an ability to avoid liability.

Frankly, that statement is obnoxious. Perhaps people in Hollywood (and self-contradictory DC think tanks) think that folks in Silicon Valley are purposely looking for legal loopholes to build businesses based on avoiding liability, but that’s flat out ridiculous. Companies are building services because they find them useful and compelling. They’re not “exploiting” safe harbors. They’re recognizing the core reason why safe harbors are there in the first place: because liability should be place on the party who actually infringes. That should be common sense, but because it’s clearly not, it needs to be spelled out in the law.

Relying on highly-specific decisions, YouTube and its amici seek to place essentially the entire burden on the copyright holder. This approach cannot be reconciled with Congress’s clearly stated intent to “preserve strong incentives for…. cooperat[ion],” … nor with the structure of the statute Congress enacted. In essence, YouTube asks this court to convert a calibrated series of shared obligations into a single “takedown” notice requirement placed solely on copyright owners.

Wow. Wow. This is just downright misleading. No one has ever said that the entire burden is placed on the copyright holder. It’s blatantly wrong to suggest that. The point that Google and others have made is simply that making a determination of whether or not something is infringing is not something that can be made without knowing certain facts that the copyright holder knows (i.e., whether or not the holder has authorized the works). Thus, the most effectively know whether or not a work is infringing — the requirement in the DMCA for content to be taken down — is through a takedown notice. Once again, like Viacom and its supporters, the WLF seems to think that Google has a magic ability to understand Viacom’s intentions and authorizations, when even Viacom’s own partners have admitted that Viacom changed its authorization rules every few days and it involved a book the length of Crime and Punishment, which was not shared with Google.

Not only is such a limiting interpretation belied by the DMCA, it is undermined by the fact (as illustrated here) that a takedown notice often provides little or no protection to copyright owners.

Again, I’m left shaking my head in disbelief. Did they really claim that? The ability to pull content down without any judicial review whatsoever (which seems to go against basic First Amendment principles) provides “little or no protection”? Apparently, the folks at WLF haven’t been paying attention to how widely the DMCA is used.

Under its interpretation of the DMCA, YouTube would be free to set up a business that knowingly infringes (and encourages and induces infringement of) copyrighted works on a massive scale by copying, publicly performing, displaying and disseminating those works. Under the construction of the DMCA it urges on this Court, YouTube could actively encourage massive infringement and still claim DMCA protection simply by after-the-fact (limited response to takedown notices.

Here, WLF is just making stuff up. Each of those points is wrong. If it has direct knowledge of infringement, then it violates the DMCA. If it induces and encourages infringement, it violates the Grokster standard for inducement. WLF knows this. YouTube knows this. No one denies this. I don’t know why WLF is claiming otherwise, other than that it can’t make its argument in a factual manner. The problem is that WLF is pretending that having general knowledge that some stuff infringes means that it can induce. No one is arguing that.

Simply put, Congress never intended such a patently one-sided result.

Well, first of all, that patently one-sided result is a figment of the imagination of the author. YouTube is not even close to arguing that it should be free to induce infringement. In fact, under the Grokster decision, everyone knows that inducement is infringement. Why WLF would pretend otherwise is beyond me.

But even worse, it’s somewhat guffaw-inducing for anyone to suggest that any interpretation of the DMCA is one-sided in favor of service providers. The entire law was written in the interests of copyright holders, and it’s massively one-sided towards them. The one balancing factor is the safe harbors. What WLF is trying to do here is to focus solely on those safe harbors — the part designed to “balance” the DMCA, and pretend that’s all there is to the DMCA, and that this interpretation designed merely to make sure that liability is properly placed on those doing the infringing is somehow one-sided. This is highly disingenuous.

There are plenty of interesting legal arguments on both sides of this case, but this particular filing is an attempt to rewrite history and the law in a manner that makes little sense and would wipe out a key principle in applying liability to those who are actually responsible. Instead, it tries to pretend that service providers have the magic ability to just know what’s infringing and what’s not. The inevitable results of increasing service provider liability in such a manner would be an incredible chilling effect on all sorts of user-generated platforms and service providers — a result Congress most certainly did not intend.

Filed Under: copyright, dmca, liability, safe harbors
Companies: google, viacom, washington legal foundation, youtube