Lawrence Lessig Warns Of Copyright ChaosMar 18th, 2007 | By James Lewin | Category: Digital Video Downloads, Streaming Video, Video
The complex balance of interests within any copyright statute are best struck by Congress.
But 20 months ago, the Supreme Court reversed this wise policy of deference. Drawing upon common law-like power, the court expanded the Copyright Act in the Grokster case to cover a form of liability it had never before recognized in the context of copyright ‚Äî the wrong of providing technology that induces copyright infringement. It announced this new form of liability even though at precisely the same time Congress was holding hearings about whether to amend the Copyright Act to create the same liability.
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.
Lessig goes on to explain how the Court’s Grokster decision led to the current case:
The content industry was a big supporter of the Digital Millennium Copyright Act in 1998. Viacom is apparently less of a supporter today. It complains that YouTube has not done enough ‚Äúto take reasonable precautions to deter the rampant infringement on its site.‚Äù Instead, the Viacom argument goes, YouTube has shifted the burden of monitoring that infringement onto the victim of that infringement ‚Äî namely, Viacom.But it wasn‚Äôt 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. In exchange, the law gives the copyright owner the benefit of an expedited procedure to identify and remove infringing material from a Web site. The provision was thus a deal, created to balance conflicting interests in light of the technology of the time.
Whether or not that balance made sense in 1998, Viacom believes it no longer makes sense today. Long ago, Justice Hugo Black argued that it was not up to the Supreme Court to keep the Constitution ‚Äúin tune with the times.‚Äù And it is here that the cupidity of the court begins to matter. For by setting the precedent that the court is as entitled to keep the Copyright Act ‚Äúin tune with the times‚Äù as Congress, it has created an incentive for companies like Viacom, no longer satisfied with a statute, to turn to the courts to get the law updated. Congress, of course, is perfectly capable of changing or removing the safe harbor provision to meet Viacom‚Äôs liking. But Viacom recognizes there‚Äôs no political support for the change it wants. It thus turns to a policy maker that doesn‚Äôt need political support ‚Äî the Supreme Court.
While take several years for this to play out, Viacom’s lawsuit is already changing the world of Internet video.
Internet video companies now have to put systems in place to deal with massive copyright infringement, something that they have been slow to do. Whether they they will have to do it proactively or reactively is one of the things that the Court will help decide.