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The Rules of Infringement

A decision from a federal court in California last week set the bar for all of those high-stakes lawsuits by Big Media companies against Internet sites where people can post things. A bunch of media companies sued Veoh, a Web site that acts as a portal for all kinds of video stuff, and that allows anyone to post videos on its site. The media companies were trying to hold Veoh responsible for stuff posted by users that infringe the copyrights of the media companies. Similar suits have been started against many Web sites that allow anyone to post content, including those against YouTube and MySpace. Obviously, if the Big Media companies are successful in their infringement claims in these lawsuits, the damage awards would be astronomical, and the fallout would undeniably change the architecture of the Internet and how we use it.

The media companies were arguing that the Web sites had a legal duty to monitor and filter stuff that’s posted by users. Veoh has never had humans reviewing what was being posted by its users, but was using a couple of automated filtering devices that scanned incoming videos and would routinely reject duplicate videos or videos that had “fingerprints” identical to known copyrighted works. These systems are far from perfect, though, and all sides agreed that plenty of infringing stuff got posted.

At the center of all this is one of the few positive provisions of the Digital Millenium Copyright Act, a morass of incomprehensible laws rammed through Congress at the behest of Big Media in 1998 that were designed to expand copyright protections and bring some anticonsumer “order” to the general chaos that is the Internet. Section 512 of the DMCA establishes a “safe harbor” for “internet service providers” in order that the ISPs won’t be automatically legally responsible for what’s running through their systems. If you liken an ISP to, say, Fed Ex, this is like saying Fed Ex isn’t responsible for stuff it delivers. Not the best analogy, I know, but you get the concept. The DMCA also says that if an ISP is informed by a copyright owner that there’s infringing stuff on the ISP’s site, the ISP has a duty to investigate and take down the infringing material.

OK. There was no real issue in that Veoh had always reacted quickly when told that there was infringing stuff on its site. The question was, did Veoh have to do more than simply take down individual sites? Once they were told by a record company that there were, say, Kanye West videos on its site, did Veoh have to survey its entire site for Kanye West videos?

The court nuked all of Big Media’s arguments. The court found that Veoh actually was doing more than the law mandated by employing filtering technology to block obviously infringing videos. The court further found that just because Veoh had the “right and ability” to filter and reject videos, this didn’t create a legal obligation for it to do so. In other words, it remains—as it has always been—the copyright owners’ responsibility to police the world for infringement, and the court ruled that the DMCA contains no provisions that will change that.

Now, this decision may well be appealed, and it has only a persuasive, not binding, affect on all the other similar cases out there. But it’s a solid and comprehensive decision, and it should go a long way in beating back Big Media’s assault on Web sites that rely on user-contributed videos and music.

There was some very good news this week when the new chair of the FCC came out strongly in favor of implementing steps to ensure Net neutrality. This will guarantee that your Internet provider doesn’t provide better and faster service for, say, its own e-mail service than for Gmail or Hotmail; that it can’t create “fast and slow lanes” based on price or content; that it can’t filter or create artificial bottlenecks for what it’s transmitting, like AT&T did a few years ago when it removed anti-Bush statements from a live Pearl Jam concert it was transmitting (while leaving in all sorts of curse words!).

A few Republicans, toadying up to big business as usual, have criticized the move toward Net neutrality, saying things like “We don’t need more government regulation.” Sweet Jumpin’ Jesus! You’d think these people would have given up on that argument after Enron, after AIG, after the near-destruction of the world as we know it caused by capitalism run amok. But no, they’ll keep ringing that bell as long as they’re paid to do it.

Good thing nobody’s really listening anymore.

—Paul Rapp


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