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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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