Tuesday, March 20, 2007

Lessig on Viacom v YouTube inviting copyright chaos

Larry Lessig has been warning of the potentially destabilising effects of the Viacom v YouTube lawsuit.

"The Grokster case thus sent a clear message to lawyers everywhere: You get two bites at the copyright policy-making apple, one in Congress and one in the courts. But in Congress, you need hundreds of votes. In the courts, you need just five.

Viacom has now accepted this invitation from the Supreme Court. The core of its case centers on the “safe harbor” provision of the 1998 Digital Millennium Copyright Act. The provision, a compromise among a wide range of interests, was intended to protect copyright owners while making it possible for Internet businesses to avoid crippling copyright liability. As applied to YouTube, the provision immunizes the company from liability for material posted by its users, so long as it takes steps to remove infringing material soon after it is notified by the copyright owner...

...the Viacom argument goes, YouTube has shifted the burden of monitoring that infringement onto the victim of that infringement — namely, Viacom.

But it wasn’t YouTube that engineered this shift. It was the Digital Millennium Copyright Act. As the statute plainly states, a provider (like YouTube) need not monitor its service or affirmatively seek facts indicating infringing activity. That burden, instead, rests on the copyright owner...

The Internet will now face years of uncertainty before this fundamental question about the meaning of a decade-old legislative deal gets resolved."

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