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Viva Vicarious

June 25, 2010

This post is a rare pleasure, but one that may be occurring more and more frequently, in that I get to bring some good news about the future of human freedom vis-a-vis copyright from the front of the War on the Internet™. The tide may have turned in that war yesterday, as the Viacom v. Google decision was handed down in favor of YouTube’s immunity from contributory and vicarious copyright infringement. To summarize the ruling more quickly than the New York Times, Google was not liable because YouTube complied with the Congressionally-carved-out “safe harbor” provisions of the Digital Millennium Copyright Act (“DMCA”) by lacking knowledge (constructive or otherwise) of any signs that there was infringing activity happening on YouTube that wasn’t being dealt with by their notice-and-takedown policy.

Put that way, it almost seems ridiculous that YouTube could legitimately claim that they didn’t know there was infringing activity occurring on YouTube. But when you look at the policy behind the safe harbor, which is to shift the burden of enforcement to the copyright holder away from the intermediary service provider, it makes sense that Viacom would have to send the notice for each piece of content, rather than YouTube preemptively screening anything coming into the site (which is what they basically do now with highly complex screening algorithms). If any website hosting user-generated content had the onus of checking all content for potential copyright violations, think of the ridiculous costs that would be imposed on creating an open internet forum. A Viacom victory would have basically shut down all user input because of the potential liability any host site could incur by virtue of what their unscreened visitors might do. And when you consider the complex and sometimes arbitrary and unpredictable legal analysis that is required to determine whether a use constitutes a fair use of copyrighted materials, any contrary ruling would be placing a pretty heavy thumb on the scale opposing freedom of expression and the constitutionally protected forms of expression that need not be curtailed except by fear of liability and lawsuit.

The effects of such curtailment on human expression would be disastrous. Studies show that file-sharing actually increases human welfare when it comes to content consumption and production.

The publication of new books rose by 66 percent over the 2002-2007 period. Since 2000, the annual release of new music albums has more than doubled, and worldwide feature film production is up by more than 30 percent since 2003… In our reading of the evidence there is little to suggest that the new technology has discouraged artistic production. Weaker copyright protection, it seems, has benefited society.

Artists also benefit by freeing themselves from the demands of publishers who usually take a hefty portion of the earnings, and that middleman can be cut out in the age of file-sharing. A nicely cherry-picked example:

In France, firing a printing plant employee is hugely expensive. The gent is paid €50,000 per year, works 32 hours per week and 164 days per year. Firing him costs about €466,000 – that’s a French government estimate…

And people wonder why the news is dying a slow death. Think about it: a publisher is a distributor; what need does a creator have for a distributor when their fans are willing to do that work for free? This seems counter-intuitive to the content industries because when we think about the purposes of Copyright, we usually ignore that Copyright’s constitutional purpose is to promote “the Progress of Science and useful Arts”; it’s not about enriching artists except as a means of promoting said “Progress.”

And with Fred von Lohmann, one of the Electronic Frontier Foundation’s most sonorous voices in the call for freedom, moving in as senior copyright counsel for Google, I am led to believe that Google is taking that stance much more seriously. Google’s positioning is a good sign for human freedom, even if that freedom is likely to encourage people to (freely) hand over their information to Google. As I’ve said before though, despite my rants on the importance of privacy as a value that we ignore to our peril, Google has to remain free to collect and analyze this information if we are to have anything resembling the freedom of thought and speech. While privacy another front of the war that human freedom is waging with perverse technological forces, that battle is being fought on a much less explicit level among the general population’s policy priorities. In that sense, it may be more important to take care of the Copyright and speech issues right here and now while the iron is hot, and leave privacy to be resolved once the implications of those policy choices become more explicitly problematic. Copyright, on the other hand, is an issue where the need for reform is so blatantly obvious to any nine-year-old that even radical revolutionaries can freely express their desire for reform with the comfort of a “safe harbor” of public opinion.

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