The Grill: The EFF's Fred von Lohmann on the Hot Seat

The attorney for the Electronic Frontier Foundation talks about the Viacom lawsuit, free speech in the Digital Age and Captain Jean-Luc Picard.

In March, Viacom International Inc. filed a $1 billion-plus lawsuit against YouTube Inc. parent Google Inc., claiming that YouTube infringed Viacom copyrights by streaming more than 1.5 billion clips of TV shows such as The Colbert Report and SpongeBob SquarePants. The outcome will help determine whether Web-hosting sites are protected under the so-called Safe Harbor provisions of the U.S. Digital Millennium Copyright Act (DMCA). The case will also likely have a major bearing on how copyrights, patents and intellectual property are treated in the evolving digital landscape.

Does the Viacom case boil down to whether YouTube is protected under the Safe Harbor provisions of DMCA? Legally speaking, that is the heart of the case. If Google and YouTube are covered by Safe Harbor, the case is over. Thats the main event.

So its OK for YouTube to allow infringing material to be uploaded to its site and to make money off it? Basically, the DMCA Safe Harbor provisions are specifically intended to let intermediaries off the hook so long as the intermediary is willing to remove the material when notified. Its not really a question of whether they should be permitted but should they be held responsible.

What about when customers upload a video back onto the site? Thats something YouTube has very limited ability to do anything about. The key is, one, you need to terminate users if you discover its the same guy doing it over and over again. Two, you need to take anything infringing down when notified.

Shouldnt copyright holders such as TV networks receive royalties for use of materials they developed on their own dime? Yes, certainly. The good news for them is that the DMCA has given them more power to take things offline. With DMCA, you dont have to go to court, you dont have to prove your case; you just have to take things offline when notified.

The other piece of good news is that other service providers like YouTube are eager to cut deals to get content owners paid for new uses that might not be covered by DMCA.

Whats a good example? The deal CBS signed with YouTube [in March], and record company deals with YouTube where copyrighters have authorized usage on YouTube [such as a music video streaming deal with Warner Brothers Music in September 2006].

Are current copyright laws passe? Copyright law is always in the process of being overhauled. Thats just the nature of copyright and technology and an effort to accommodate the two. But Safe Harbor, as it has been applied by courts up until now, doesnt need to be changed. The reason we have companies like Google and YouTube and eBay is that Safe Harbor was written by Congress in 1998 to protect investors and build those businesses.

I think that part of DMCA Safe Harbor is working out well. I dont think Safe Harbor has addressed freedom of speech effectively enough.

We sued Viacom [in March] for taking down content. Civic Action and Brave New Films, a documentary film company, worked on a short video that was a tongue-in-cheek parody that used a number of clips from The Colbert Report. It was removed from YouTube due to a takedown order through Viacom. We sued in response, and Viacom has since confirmed that it was a mistake, withdrew their takedown and put the video back up. Were in discussions with [Viacom] to make sure that dolphins dont get caught in their big DMCA fishing net.

[The EFF subsequently dropped this suit, citing Viacoms willingness to take steps to protect the free speech rights of those who post videos to YouTube and similar video sharing sites.]

Does Googles making money off of this mean it isnt fair use under DMCA then? Many people have said that Google and YouTube should not lose Safe Harbor [protection] because they make money from advertising. Theres some question as to whether that financial benefit is direct enough; thats for the courts to answer. If lawyers best understanding of Safe Harbor turns out to be wrong, there are going to be a lot of Silicon Valley companies that are in trouble.

What are some aspects of copyright law that do need to be fixed? The current law supports digital rights management, and thats a mistake. It has imposed huge costs on fair use and on interoperability and competition. Thats been a complete loser that Congress hatched in the mid-90s. Wed all be better off if they pulled up that weed now.

Congress is also grappling with how to make digital music licensing more efficient. Outfits like iTunes will tell you that the business of licensing music is still incredibly difficult and uncertain.

Copyright © 2007 IDG Communications, Inc.

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