YouTube, Viacom, Safe Harbor and the Big Media Bait-n-Switch

A quick post because a C&I copyright essay’s not likely for at least a month or two…and because today’s SF Chronicle TV column leaves out crucial things, not at all surprising given the writer’s predilections.

Admission up front: I’m no fan of Tim Goodman. We had a great local TV commentator before Hearst bought the Chron. The great TV writer retired. We’re left with…well, Goodman.

Today’s piece is about who’s “right” in the Viacom infringement suit against YouTube. And, big surprise, Goodman says there’s no question: Viacom’s right, YouTube’s wrong, fair use isn’t even an issue. Because, you know, Viacom produces all that Content, while YouTube does nothing but distribute. By implication, nobody watches anything on YouTube except clips pilfered from Big Media productions.

On its own, it’s a seriously muddled column. He says, and I agree, that most people are going to watch most shows on TVs and get them from traditional sources for a very long time to come–that most people don’t much want to watch long-form video on handhelds or cell phones or even PCs. Which, of course, means that YouTube is an attractor for Viacom and friends, to the extent that people watch Big Media stuff on YouTube. He doesn’t really discuss that.

The reason for this quick post, though, is what Goodman leaves entirely out of the lawsuit equation. YouTube’s primary defense isn’t Fair Use (although it possibly could be). It’s the DMCA Safe Harbor provision. One tiny little “pro-consumer” piece of that vastly pro-Big Media bill basically says that digital carriers can’t be held liable for infringement as long as they remove copyright material upon request (and aren’t actively encouraging infringement, and take reasonable efforts to discourage infringement).

YouTube famously removes material as soon as it’s informed that the material infringes copyright–probably without even checking whether that’s a legitimate claim. (Fair use provisions do mean that, in some cases, it’s legitimate for a YouTube video to contain elements of broadcast TV.) In practice, safe harbor provisions favor copyright holders: The digital sites respond immediately to take-down requests, not negotiating the reality.

But, of course, that’s not good enough for Big Media: Now that it has the extreme copyright protections of DMCA, it wants to undermine the balancing clauses. To do so would mean that video-sharing sites would have to require some sort of proof that each uploaded video wasn’t an infringement. Good luck with that. Realistically, Big Media doesn’t want sharing sites to be around, unless it controls them or at least gets paid everytime somebody watches a clip that might be under its control.

Actually, take away the safe harbor provision and every web service that stores any user-generated content is in trouble. Upload a vcast that happens to have the TV or radio on in the background? That could be claimed as copyright infringement (rightly or wrongly). Heck, quote a line of a pop song in a blog entry? Some writers and publishers claim that even a single line of a poem is too much for fair use.

This isn’t new. The Audio Home Recording Act (AHRA) was a pro-copyright compromise, that explicitly legalized copying music digitally from radio (etc.) for your own use, while “rewarding” copyright holders by adding a surcharge to recorders and blank media and distributing that surcharge to copyright holders. That’s why “audio CD-Rs” cost more than data CD-Rs and standalone CD recorders won’t record on data CD-Rs: AHRA.

Now, of course, Big Media’s taking legal action to prevent people from intelligently recording XM or Sirius radio (that is, recording individual songs), claiming it’s copyright infringement and carefully ignoring AHRA. It’s the same bait and switch: Bait an unbalanced law with supposed consumer protections, then switch back to claim that the protection is excessive and either ignore it or try to get it reversed.

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