Prof. Lichtman makes his case against YouTube

Soon-to-be UCLA Law Professor Doug Lichtman has come out of the academic closet to join Viacom's legal team in their quest to punishtake on YouTube.  As part of making his case, he's published an Op/Ed in the LA Times laying out his reasons for joining the media giant's Jihadcampaign:

LAST WEEK, I joined a team of attorneys suing Google over the YouTube video-sharing website it owns. The decision to join the fight was a tough one for me because, like many people, I am excited by the promise of user-generated video. I like the idea of a website that helps aspiring producers and amateur filmmakers distribute their work to the public. That said, YouTube has been, throughout its existence, a haven for copyright infringement.

...

And Google, knowing all this and benefiting from the attention the unauthorized videos bring, has refused to take even simple steps that would reduce the infringement without meaningfully interfering with the service's legitimate use. That is what led me to join Viacom Inc.'s legal team.

This is all well and good, and while I usually have high respect for Doug, this approach to Internet Governance seems incredible dangerous to me.  Basically, his theory is that anyone who refuses to reduce potential harm on the Internet should be liable for all the harm that occurs as a result.  But that goes exactly against the nature of the Internet.

The Internet is not some kind of top-down hierarchy where ISPs and entities like Google have absolute control over every bit and byte that flows through the system. Nor would we want it to be.  Think about the problems we have from a free-speech perspective with top-down media channels like broadcast television and the rest of mainstream media.  Think about the problems we have with entities like the FCC, who control and regulate our spectrum without real accountability.  Think about the recent debates over Network Neutrality and the importance of allowing the free flow of information online.

All of the freedoms we enjoy on the Internet in terms of diversity, autonomy, independence, and free speech are premised on the idea that our actions and publications are not controlled and subject to pre-approval by major corporations, governments, and providers.  The fact that I can post this message, send any email I want, or upload a video to YouTube without anyone's permission is an essential part of Internet freedom. Yet this is exactly what Lichtman's rule of law will attack.  Under his rule, Google/YouTube will be legally required to control/pre-approve all video before it goes live on the Internet.

Now, sure, online copyright infringement is a problem.  But every time you give people freedom, some will abuse it.  The remedy, however, is not to take away our freedom and give power and control over our actions and free speech rights to others, especially corporations where we have no say in their policies.  That subjects our voice to their whims and biases, not to mention their economic and political interests.  Instead, we must uphold the principles that made the Internet what it is today -- the freedom to communication and share information directly between individuals at low cost, without approval, censorship, or prejudice.

So if not Doug's solution, then what? To me, a real solution would be one where both copyright and freedom prosper. There are many options, but one such solution I like is licensing.  If Viacom and the other content companies are willing to strike deals with YouTube, they can insert advertisements on the video pages where users upload their content and actually pay the artists who help create the content they own.  This will also reduce enforcement costs.  They can also send DMCA take-down notices to remove any content they do not like. YouTube has been quick to respond to all such notices, including the 100,000 Viacom sent just a few weeks ago.  Such an approach would allow YouTube and its user base to continue posting without approval and still provide compensation to artists and some degree of control over the use of their content.  It's not a perfect solution, but it is a far better one than taking freedom away from the Internet's users.  (Note: It's unclear whether Viacom has made such a licensing offer to Google or not and it may be that Google is simply refusing to pay a reasonable sum for the license, but even if this were the case, Viacom hasn't come forward to publicize their position prominently and advocate this solution as their main meme.)

It's easy to see the Viacom v. YouTube battle like Doug does -- good versus evil; copyright creators vs. copyright infringers.  But the truth is vastly more complicated and the "big picture" which he alludes to includes far more at stake than even he discloses.  The battle over YouTube is not just a battle over copyright; it is a battle over who controls content distribution on the Internet: users or corporations.  So before you pick a side like Doug has, make sure you've decided which online world you want to live in.

Update: A kind reader pointed out that this post could come off as an ad hominem attack on Doug.  It's not meant to be one at all, so I've stricken some of the more inflammatory language above.  I respect Doug very much and think very highly of his work (I even assign his articles in my classes).  And to be clear, I don't think Doug's OpEd represents some kind of cyber-extremism; on the contrary, what he proposes is far less radical than those of the IP maximalists we've seen in recent years.  That said, I think he and I have very different views of what the proper balance should be when it comes to regulating web services and innovation online and my points above still stand regarding the dangers of his approach.

Comments

[malachy c.]

it seems your solution (which is essentially the status quo) is merely the flip side of the Lichtman formulation (as you have characterized it). Instead of having owners of technology such as YouTube take some responsibility for the content that drives the success of their business, you would maintain the current system which leaves content owners -- alone and unaided -- to police infringement across the enormous expanse of the Internet. (You do suggest a licensing option; again, parties are always free to contract with one another, but as things stand, the owners of copyright-protected works are in a substantially weakened position given the one-sided nature of enforcement.)

This may be the best of all possible solutions, but remains one I find troubling. For instance, in the present case, allowing YouTube to freely host copyright-infringing works until the receipt of take-down notices does nothing to remedy the harm of the infringement. (Of course one can quibble about the nature and extent of harm, but thats not really the point -- suffice to say I think its wrong to blow it off as insignificant.) The owners of the works would be left with the sole option of pursuing infringement claims against the myriad individuals who wrongfully posted the works, i.e., the RIAA solution. I don't believe this is a path anyone in this debate would care to follow.

In any event, thanks for the heads-up re the Lichtman article. The hopeless optimist in me believes that the Viacom-Google lawsuit may foster quality debate on this thorny issue that might just take us to a workable new way.

Regards.

[Jason]

Yes, I am explicitly arguing for the status quo in terms of the legal rules that govern the Internet. My position is that the status quo is better for Internet freedom than Lichtman's solution, which would take control out of the hands of users and place it back in the hands of large governmental and corporate entities.

Moreover, I would point out that the arguments you make about "not taking responsibility" for the content that drives the success of YouTube's business can be applied to almost every Internet business -- ISPs, web hosting, Flickr, Twitter, even Typepad (my blog service). So if YouTube has to actively police, control, and approve the millions of videos uploaded to its site, then so will every since Web Services company. So yes, I prefer our current world to that one.

Finally, as to the nature and extent of the harm, I think we cannot take an absolutist position that any harm to copyright is too much harm. Some harm and some leakage of copyrighted works is inevitable and always has been. The only world in which that will not happen is a 1984/Minority Report world where there is absolute control over individuals and no freedom. So the real question is how much harm vs. how much freedom. Thus, my argument that some harm to copyright owners is acceptible to preserve the fundamental freedoms on the Internet. The key is making sure there is a viable business model for creativity on the Internet. And so far, there seems to be no lack of that.

[Kaisen]

"Refused to take even simple steps that would reduce the infringement"

I'm skeptical that YouTube is not doing enough about alleged copyright violation. Inspecting content seems very resource intensive. I assume the way copyrighted content is found on YouTube is through a search based on its tags. Then a human must determine if the content is in fact an alleged copyright violation. (On a tangent, the job description of that would be somewhat amusing... "Browse YouTube all day and find copyrighted content.")
However, I have seen videos now that remain untagged and are then externally linked. Thus there is no way YouTube can determine if content is even possibly infringing without screening every single submission with a human.

Also, I don't know if we talked about this in class, but I thought service providers who don't look at the content going through aren't legally responsible. I might be wrong about this, but if this is the case, and YouTube content is untagged, then YouTube certainly should not be punished so heavily.

Lastly, I'm assuming someday streaming video will be so ubiquitous, that instead of having physical DVDs, we'll just store our content online. That will probably open up another can of fair-use worms.