Viacom Takes on YouTube and the DMCA

The Digital Millennium Copyright Act (DMCA), one of the worst ideas every pushed through Congress, was passed in 1998 and has been the shield behind which ISPs have clustered when copyright holders seek restitution for blatant infringement of registered material. The DMCA has succeeded in protecting not only ISPs, but the individuals who actually post the material, often because ISPs refuse to cooperate with providing information which will lead to the actual infringers and ISPs often go out of their ways to avoid knowledge on the individual infringers true identitites. ISPs usually will take down the material which is identified under the formulaic "notice and take-down" provisions, but will do nothing to pro-actively prevent repeated infringements of the same material. The ISPs, hiding behind the formality of notice and take-down, require the demands be sent again and again rather than recognizing what is happening and setting up systems which can police repeated infringements.

Google and YouTube were sued by Viacom for massive copyright infringement recently, and finally some attention is being paid to the burden the DMCA notice and take down provisions place on a copyright holder when the same material is continually being reposted to the same web site. At what point is an ISP or other web entity going to be held accountable under the legal concept of constructive knowledge?

As Harlan Ellison's first attorney in his case against Internet infringement, I have first-hand knowledge of the difficulty of policing the Internet for infringement. You need to track down the infringement, track down the infringer, track down the ISP, find the agent for notice of infringement (and hope that the information on the Copyright Office web site is accurate--which AOL's was not), send the notice, make sure it is followed, and keep an eye out for a repeat posting of the material which was taken down, so the whole process can start over again. In Harlan's case, the same initial scans of his works are the ones which have been re-posted all over the world--the metadata gives it away every time.

The Ninth Circuit did address constructive knowledge in Harlan's case because a number of writers attempted to notify AOL, through its various technical support numbers, of what was posted on the alt.binaries.e-books newsgroups. Even though the individuals were not the writers of the actual books posted (and, consequently, had no standing to send a notice and take-down demand as outlined by the DMCA) my reading of the decision is that those phone calls gave AOL constructive notice of the infringement of copyrighted works on a newsgroup it chose to provide to its subscribers. That constructive knowledge is a benefit to a copyright holder trying to pursue damages under the DMCA.

In my perfect world (and, I suspect, that of Viacom) Google (which owns the service where you are reading this blog) and YouTube should find themselves liable where they have received notice at least once of material owned by the Plaintiffs. Google and YouTube may be even more culpable, since they have attempted to arrange licensing for the materials at issue and were not able to come to an agreement. Copyright law does not give a print-publisher the right to take material when an author says "no" and this same right should exist in the cyber world as well. If it doesn't, what is the incentive to actually register material under the U.S. copyright formalities. Frankly, what is the incentive to create if there is inadequate compensation for creating.

I have often said I'd be perfectly fine living under a patron system where I could make the photographs I want to and someone would pay me a nice stipend to cover the lifestyle I'd like to live. Unless my husband finally is compensated for creating Wolverine, I doubt that will happen in this lifetime. I earn my money for the photographs I take by licensing their reproduction and I have a small body of registered work which has earned me a nice income over the past 20 years, even if I don't pick up a camera much anymore. My work is infringed on the Internet and sometimes I have no idea how it has happened. Usually I do. The most common way is when the material has been copied from the Grolier's CD-ROM Visual Encyclopedia of Science Fiction, which was published in the early 1990s. I licensed over 100 portraits to that work and I occasionally run into them if I do a search on my name or the name of one of the subjects. My license to Grolier's was not a license for anyone else to copy, distribute, display, or otherwise use my photographs. Every such use without permission and payment is an infringement.

There are several things in the way of me effectively combating the war on my copyright: Under the DMCA, the deepest pockets are effectively protected. It is almost impossible to find out the real name and location of a specific infringer without an expensive fight against the ISP because the subpoena which was supposed to be available under it is ineffective (and, when I started Harlan's case, pretty much unavailable; the Clerk of the Court of the Central District of California had no idea what I was talking about and when rules were finally put into place the following year, the cost for one was the same as actually filing a law suit--not the intent of the law.) Once a work has been put up on the Internet, it is almost impossible (or beyond my ability to pay) to track every place it has been copied. Even if I can locate the infringers, many are in foreign countries and pursuit would cost more than I would be likely to recover. There are still foreign countries which don't recognize copyright rights. Life is too short to spend it all at war when the law is supposed to protect me.

In the U.S. there seems to be this perception that copyrights are all owned by big, greedy corporations so who could possibly care if they get ripped off. That was certainly the reaction about Napster when the music companies started going after the individuals who used Napster and its progeny to steal music. That's the reaction when the motion picture industry goes after the people who are "trading" digital copies of films.

The truth is that there are many, many individuals who are harmed by unfettered copyright infringement: writers, photographers, and illustrators who have no collective bargaining agreements and who rely on royalties or licensing fees to supplement their income after their initial compensation for a work and screen writers, actors, and directors who are subject to collective bargaining agreements which give them a (tiny) share of the revenue stream of television and motion picture productions.

I did a spit-take when I read the complaint against Google and YouTube because the studio invoked the "little people" who are harmed by the infringements. They won't give the writers, actors, or directors a percentage based on all revenues, only 20% of revenues, but, boy, those are the folks really harmed and why the suit is being filed. HAH! It reminded me of being in the Supreme Court for arguments in C.C.N.V. v. Reid and hearing the C.C.N.V. lawyers talk about how the homeless would be harmed if James Reid was the owner of the copyright of "No Room at the Inn" and not C.C.N.V. Sandra Day O'Connor, bless her, pointed out the big businesses (the computer industry and big publishing) which had come in on C.C.N.V.'s side because a narrow reading of the work for hire provisions as they applied to freelancers would cost their industries big time.

Despite my sarcasm about the complaint, I stand firmly with the plaintiffs in this case. Google's motto may be "Don't be evil," but there is a clear disconnect between what they are doing and the reality that it is evil to allow individuals to steal on a massive scale and to do nothing more than follow the letter of the law. If the court in this case recognizes the importance of constructive knowledge, there's a change that Google will have to acknowledge the spirit of the law as well.

All this being said, I like Google and YouTube as products and I wouldn't mind working for Google (which is said to be one of the best companies to work for in America) if it starts paying for the content upon which it is built (that includes the absurd scanning project where they expect copyright owners to have to opt-out rather than being asked for permission.) Google is awash in money, and some of it should go to the copyright owners. If a copyright owner doesn't want its material used, Google should graciously find other content. There's plenty out there for the right price.