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.