Viacom Exec: 'Everyone Knows A Rogue Site When They See One'? Except He Doesn't
from the are-they-serious? dept
There’s apparently a bit of a debate within the American Bar Association over its position on SOPA/PROTECT IP. As you can imagine there are lawyers on all sides of the debate. However, some folks involved in the copyright and trademark legislation committees put forth a motion for the group to “support” the proposed laws, leading to some pretty strong push-back from a lot of lawyers (including those who were involved in crafting the DMCA’s safe harbors, who see the attempt by SOPA to undermine all of that work as pretty nefarious). Some of those involved in the debates have been sharing some of the back and forth, and among the discussions is an absolutely stunning email from Michael Fricklas, the general counsel of Viacom, and the driving force behind that company’s billion dollar lawsuit against YouTube. Think of that as you read the following statement:
In the field, it’s pretty easy to tell if you’re using a domain that is dedicated to infringing material. If you choose to speak there, I suppose your speech is at risk until you choose to move it elsewhere. I don’t think there is a first amendment right to speak on a site that is engaged in pervasive copyright infringement (assuming that there are plenty of places to speak).
It’s this single statement that, I think, encapsulates the key point of disagreement between those who support SOPA/PIPA and those who don’t. Those on the “stronger enforcement” side always seem to assume a “you know it when you see it” definition of “dedicated to infringement.” We hear this all the time when we talk about the possible unintended consequences of such laws or ICE’s domain seizures or other attempts at greater, more draconian enforcement efforts. One group insists that “it’s obvious” what’s infringing and what’s not. Sometimes they’ll even point to a particular file, as if that “proves” that it’s easy to tell what’s infringing.
But reality isn’t so simple. Let’s take Fricklas and YouTube as an example, since he’s so sure that “it’s pretty easy to tell” when “you’re using a domain that is dedicated to infringing material.” After all, according to Fricklas’ own lawsuit, YouTube qualifies. If SOPA were in place half a decade ago, Fricklas wouldn’t have filed a lawsuit. He would have just declared YouTube as “dedicated to theft of U.S. property” under the definitions in the bill (“enabling” and “facilitating” infringement? check! did Youtube “avoid confirming a high probability of the use” of the site for infringement? perhaps. check!). Then he’d send notices that would have effectively killed YouTube, forbidding advertising or payment processors to do business with the site. While YouTube could counternotice, there’s no requirement for ad providers or payment processors to ever take it back, and, in fact, the incentives are there for them to just avoid doing business with anyone accused.
So, Viacom gets to kill YouTube, because in Fricklas’ mind, it’s “it’s pretty easy to tell” that YouTube is “dedicated to infringing material.” There’s just one problem. Back here, in reality, determining what is and what is not dedicated to infringing material is not so easy. It’s so confusing, in fact, that Fricklas and his team realized just before the case started, that some of the videos they were suing over, claiming they were infringing… were actually uploaded by Viacom directly. You see, it turns out that it’s not so easy to tell. And, perhaps, Fricklas believes that Viacom shouldn’t have rights to free speech on platforms like YouTube, as he implies in his statement, but the law doesn’t quite work that way. And that’s why Viacom was soundly trounced in its lawsuit against YouTube.
The best legal ruling I’ve seen that does a wonderful job explaining this comes from an Australian court, rather than a US court. In the iiNet case, the judge explained:
Regardless of the actual quality of the evidence gathering of DtecNet, 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 iiNet users, and how often iiNet users, infringe copyright by use of the BitTorrent system. The respondent had no such guidance before these proceedings came to be heard. The respondent apparently did not properly understand how the evidence of infringements underlying the AFACT Notices was gathered. The respondent was understandably reluctant to allege copyright infringement and terminate based on that allegation. However, the reasonableness of terminating subscribers on the basis of non-payment of fees does not dictate that warning and termination on the basis of AFACT Notices was equally reasonable. Unlike an allegation of copyright infringement, the respondent did not need a third party to provide evidence that its subscribers had not paid their fees before taking action to terminate an account for such reason.
Copyright infringement is not a straight yes or no question. It involves “a very significant quantity of technical and legal detail.” It’s easy for people to declare that “it’s obvious.” But the reality is that it’s very rarely obvious. That’s why there are supposed to be full on adversarial hearings to determine this kind of thing so that, as in the iiNet trial, all sides can be heard, rather than imposing a sort of death penalty based solely upon a one-sided accusation. Because, all too frequently, we discover that the “obvious” infringement in the accusation turns out to be anything but obvious.
We’ve already seen it in the US numerous times with ICE’s itchy trigger finger. Remember how ICE seized a blog based on claims by the RIAA that it was “dedicated to infringement.” Unfortunately, the evidence showed that every song used as “proof” of such infringement, was actually sent by authorized representatives (and one came from an artist who had no connection to the RIAA at all — not that it stopped the RIAA from declaring it infringing).
What seems “obvious” is rarely as “obvious” as it seems.
But it’s this stunningly hubristic belief that it’s “obvious” and that the nuances and details of copyright law aren’t important, that drives folks like Fricklas to support laws with tremendous unintended consequences. No one denies that there’s no legal protection for infringement. But, we want to make sure that when we stamp out infringement that’s all we’re stamping out. Tragically, having folks like Fricklas telling us that “it’s obvious” as to what’s infringing and what’s not and suggesting that we can trust them to always get it right is not particularly compelling, given their dreadful track record on the subject to date.