Joho the Blog
An Entry from the Archives

a timely post, david. i wrote about this mess a few weeks back and came to similar conclusions in the comment thread.

it seems as though the dmca was passed to enable blanket suppression of freedom of speech because it would be too difficult to make potential copyright infringement cases on a case by case basis in this decentralized information age.

essentially, corporate copyright holders were provided a legal cross between a machine gun and a shotgun to go hunting fair use infringement, rather than a tranquilizer gun for arguing their case on an individual basis.

greed and collusion enables this type of legislation.

"Establishing statutory penalties such as those for copyright infringement would make that point at least symbolically."

That's largely fighting bombs with more bombs. Then, it's really a competition determined by the combination of who has the most bombs that is also the most willing to pick and sustain the most destructive fights.

So, I think "statutory damages for restricting free speech" would only really have teeth if those doing the restricting were threatened by greater and more frequent damage charges than they themselves could charge (for copyright infringement) against others. And, then, with teeth, would it encourage a process (e.g., of reconciliation for wrongs) that was healthy?

On the other hand, removing the statutory damages feature of current copyright law (or, redefining it to severely restrict its applicability) would "dismantle the bombs" that the copyright monopolies are lobbying at everyone.

(Just saying that I'm not sure that getting more into the lawyers + teeth + biting racket is saner than curtailing the existing lawyers + teeth + biting racket.)

Couple of thoughts:

(1) Viacom is not the government. Therefore, neither Viacom nor YouTube can violate the Free Speech rights of a YouTube video poster.

(2) Out of 150,000 takedown notices sent by Viacom, only 60-70 have been claimed to be wrongful. That is a 0.05% error rate. Is the real problem the 0.05% error rate, or is the real problem the 99.95% that is, in fact, infringing?

(3) You don't like the notice and takedown system? Good. Then, we'll both be happy when YouTube loses its claim to be protected by Section 512, has to affirmatively cleanse its site of copyright-infringing videos to avoid infringement liability, and can no longer claim it has no legal obligation to deal with the massive infringement it sponsors and countenances until it receives a DMCA notice.

Viacom is not the government. Therefore, neither Viacom nor YouTube can violate the Free Speech rights of a YouTube video poster.

When Viacom misuses the courts to harass YouTube into taking down material it would prefer to leave up, someone's speech rights are violated. I'm not certain whether it is the original poster or YouTube, but someone was threatened with penalties for taking a protected action without cause.

Maybe that would be the way to handle this. YouTube could bide its time until it has investigated some healthy fraction of these bogus takedown notices, and then serve Viacom with a giant suit based on YouTube's right to free speech. That might not help the original poster much, but it should cut down on this problem going forward.

Is the real problem the 0.05% error rate, or is the real problem the 99.95% that is, in fact, infringing?

Does anyone really believe that this is the distribution of non-infringing and infringing videos? How many people noticed the takedown? Of those who noticed, how many cared? Of those who cared, how many were frightened by the bogus implication that they were liable for damages? This is the problem with entrepreneurial law: if we only consider the rights of those who retain legal representation, only those parties actually have rights.

"When Viacom misuses the courts to harass YouTube into taking down material it would prefer to leave up, someone's speech rights are violated."

The First Amendment states that the government shall make no law abriding rights to free speech. It does NOT prohibit me from filing trespassing charges against some bozo who camps out on my property even if that bozo spends the whole time making an impassioned plea to end the death penalty, save Darfur, or reform health care.

I challenge you to spell out a real legal theory under which it is a violation of the First Amendment for Viacom to send a takedown notice, whether the work was infringing or not.

"Does anyone really believe that this is the distribution of non-infringing and infringing videos?"

Are you kidding me? Are you actually saying that Viacom couldn't have found 150,000 infringements of its copyrights among the millions of videos on YouTube? Have you ever been on YouTube? You can't just bury your head in the sand when reality clearly counters your biases.

In a bit of shameless self-promotion, I wanted to point out that I noted a need for more teeth in the provisions in my blog post back in March (scroll down to "Tweak the Third..."). I had not thought of - and very much like the idea of - adding a statutory damages provision.

Also - and this goes unnoticed by most - there is NO obligation under the statute for the service provider to put the allegedly infringing material back up, even given a counter-notification. Making the material available again once given a counter-notification removes the provider from liability to the SUBSCRIBER for taking the material down. (512(g)(1).) In other words, YouTube could decide to ignore Wendy Seltzer's counter-notification and still be in the clear with respect to any claims coming from the NFL; YouTube would be out of the statute's protection with regard to any claim from Ms. Seltzer for damages arising from its decision to take the clips down... but what would those be, again?