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YouTube 1, Viacom Nil

The big news this week—maybe this month, maybe this whole year—is that Viacom’s gazillion-dollar infringement suit against YouTube was thrown out by a New York federal judge. This surprised and delighted most everybody on my side of the fence, because the decision came so quickly (federal judges can take their sweet time with the most rudimentary of decisions, believe me), was so decisive (Viacom was thrown out on its ear) and so damn right! The rightness was particularly sweet: Judges in copyright cases have for time immemorial been vulnerable to the arguments of the Big Media cartel to treat intellectual property just like real property (which it’s not), and, when confronted with those parts of the Copyright Act that counsel otherwise, simply ignore the law or, as the Supreme Court did a few years ago in the Grokster case, make the law up. Judge Stanton in New York did neither last week, and thank God for that. YouTube lives on.

As I’ve mentioned before, the suit basically tried to hold YouTube responsible for any infringing material someone might post on the site. It’s always been the copyright owner’s job to police his or her own copyrights, and Viacom was trying to shift that responsibility to YouTube. It’s a ridiculous argument: How is YouTube supposed to know what’s infringing and what’s not? Is YouTube supposed to make fair-use determinations? As I pointed out in the past, somebody posted my old band’s videos on YouTube a few years ago, and I was thrilled: It saved me the trouble of doing it. And I’m 100-percent positive there are thousands and thousands of other copyright owners out there who feel the same way about their stuff showing up on YouTube. We’re elated at the “infringement.” Wish more people would do it. I know there are live shots of Blotto out there. Post the suckers. I’m begging you.

Fortunately, there’s a provision in the law that says if an Internet service provider like YouTube promptly investigates and takes down infringing material from its site when it receives a complaint from a copyright owner, it can’t be held responsible for infringement. And YouTube does that, all day, every day, maybe even a little too zealously. How many times have you gone to look at something, only to be told that it had been removed at the request of the copyright owner? That’s what I’m talking about.

This apparently wasn’t good enough for Viacom, but it was more than good enough to satisfy the law, and so ruled the judge. Viacom, for its part, vowed to appeal.

In closely related news, Victoria Espinel, President Obama’s “Intellectual Property Enforcement Coordinator,” released a big ol’ plan of action last week. On its face the document is fairly neutral, free of much of the rhetoric of the intellectual property wars, where cartels like the MPAA and RIAA claim to champion “creators’ rights” when they are actually stealing money from creators and feeding it to their shareholders, and then label anyone who would disagree as being somehow “anti-creator.” (Um, I’m pretty sure I’m not anti-creator. Ask my clients. Anti-fascist, anti-bully, anti-bullshit, sure. Anti-creator, nyet.) Most of the “action items” in the plan are laudible, if not a little banal, like making sure government contractors use authorized software, or calling for a clampdown on counterfeit medical devices. There is also a nice little shout-out about the importance of the fair-use doctrine in copyright law to “innovation and artistry,” which shows—maybe—that the whole shebang isn’t completely corrupt and industry-driven, as many had feared.

Probably the most significant aspect of the report is the promise of a white-paper report, to be produced in 120 days, making recommendations for changes to the copyright laws. This is where the vagueness and platitudes of this initial report will start to take shape as actual policy recommendations. You know Big Media will be hammering hard to continue its decades-old trend of hijacking copyright law from its original purpose of protecting the public good to its new purpose of protecting Big Media. Despite the reserved tone of the report, we know Big Media already has a big pal in Joe Biden, who announced the report with a typically blathering statement equating “piracy” with “theft”: “It’s smash and grab. It ain’t no different than smashing a window at Tiffany’s and grabbing [merchandise].”

Urgh. As Mike Masnick in Techdirt points out, infringement and theft aren’t the same, they’ve never been the same, and the courts have been recognizing this for centuries. So, Joe, once again, shut up please. Copyright law is a big complex deal, one that may well be beyond your jumbled but well-intentioned powers of thought. Leave it to the experts, and please beware of the glad-handers in the shiny suits.

Report in 120 days. Right around Halloween. It’ll be a graveyard smash.

—Paul Rapp


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