Viacom Coulton-Gate Deftly Demonstrates Why It's Crazy To Think YouTube Can Know What's Infringing And What's Not
from the let's-get-real dept
We recently wrote about a video that suggested that a Viacom web property, Spike.com, was doing to Jonathan Coulton what Viacom was claiming YouTube/Google had done to it. As we noted in the post, the video played a bit fast and loose with the facts, so we were a bit skeptical of the whole thing. It later turned out that a Viacom exec pointed out to Coulton that, many years ago, he had (in passing) authorized the use of the video on iFilm, as part of an effort to get the video on VH1. Of course, he’s also now realizing that due to the non-commercial use clauses of many of the Flickr images he used in the video (which is about Flickr), that he probably didn’t have the right to put it on a commercial site.
This is the point where Viacom supporters do the happy dance and claim that this proves how wrong everyone was to jump on this story.
Except… not so fast. This little vignette actually supports YouTube’s position a hell of a lot more than Viacom’s. It shows just how complex and messy these issues can be — such that there’s no real way for some third party to judge whether or not it’s infringing without knowing the details. Even the content creators themselves — whether Coulton or Viacom — often seem to get confused over the matter. And yet Viacom thinks that Google can hire 30,000 lawyers skilled in copyright law to review the 24 hours of video uploaded every minute on the site? When even the content creators themselves don’t know?
Even if you could hire 30,000 experts in copyright law and fair use to analyze each and every video uploaded, it still wouldn’t work out. In this case, Coulton gave the approval for the video, but even he’s now realizing (years later) that the images in the video were restricted and shouldn’t have been allowed on a commercial site. But he was trying to get the video on a “viral videos” program on VH1. VH1 is a commercial property too, right? So wouldn’t that have been just as infringing? Or would that be fair use?
The whole point is that it’s not at all easy to figure out these things. As a court in Australia recently noted, the determination of infringement is not a black or white thing:
Copyright infringement is not a straight ‘yes’ or ‘no’ question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether…. users infringe copyright….
That’s a key point in all of these discussions. Companies like Viacom like to claim that Google can easily figure out what is and what is not infringing, but there’s no magic bullet or magic wand to do that. There’s no way to know whether the content is properly licensed, or being uploaded by someone who has all the rights. There’s no easy way to know if a court would find a work to be infringing or fair use. And dumping that decision-making onus on a third party service provider makes little sense no matter how you look at it. If there’s an issue, it’s between the copyright holders and the uploaders of the content. Bringing in a third party and demanding they police such things without the knowledge to do so simply makes no sense, and clearly is not what Congress intended with copyright law.