Viacom's Real Intent? To Pretend The DMCA Requires Filtering
from the changing-copyright-law-through-lawsuits dept
A much better analysis, that really cuts through the clutter and highlights the key point of the case, is the one by the EFF's Fred von Lohmann, where he notes (as Eric Goldman did) that in a footnote, Viacom admits that it's fine with all of YouTube's actions after May of 2008, when it implemented its own filtering technology. Once you realize that, it becomes clear: Viacom is claiming that the DMCA requires filters. Yet, the DMCA is explicit that this is not true, and always has been. In fact, if I remember correctly, Paramount Pictures top lawyer (Paramount is a Viacom subsidiary) said in a discussion we wrote about last year, that he felt the current DMCA was deficient, in that it had a notice-and-takedown provision, rather than requiring proactive monitoring.
And yet, by Viacom's own (indirect) admission in this lawsuit, it seems to believe that the DMCA requires proactive monitoring:
So what Viacom is asking for here is a radical re-write of the DMCA that, if accepted, would put all kinds of online service providers at risk of huge statutory damages for copyright infringement. Is eBay used to commit copyright infringement every day by some users? Sure. Do people use Microsoft's Bing to find infringing materials? Check. Do online lockering services get used to store infringing materials? Do users send infringing email attachments? How about the "send file" features of every instant messaging system? The only reason these (and many other) online services exist is because the DMCA safe harbors give them rules to follow that are much clearer than the murky standards for "secondary liability." If Viacom is right, then there are no clear rules to follow, except "beg permission from every copyright owner first." And that's a rule that would hobble innovation and competition online.So please pay careful attention to the actual arguments being made here. No one is saying that copyright infringement should be allowed on YouTube. The only question is whether or not it should be YouTube's responsibility to proactively monitor that content and stop it from being uploaded. The law is pretty clear that this is not required -- and, as Google's filing makes clear, even if it were required, given Viacom's own actions, this would be impossible.