The case against YouTube
LAST WEEK, I joined a team of attorneys suing Google over the YouTube video-sharing website it owns. The decision to join the fight was a tough one for me because, like many people, I am excited by the promise of user-generated video. I like the idea of a website that helps aspiring producers and amateur filmmakers distribute their work to the public. That said, YouTube has been, throughout its existence, a haven for copyright infringement.
The problem is that users upload excerpts of copyrighted movies and television programs without authorization, and then YouTube happily distributes that contraband to the public. And Google, knowing all this and benefiting from the attention the unauthorized videos bring, has refused to take even simple steps that would reduce the infringement without meaningfully interfering with the service's legitimate use. That is what led me to join Viacom Inc.'s legal team.
The legal nuances of the suit will soon enter popular discussions. Lawyers on both sides will cite the Digital Millennium Copyright Act and argue about the extent to which its provisions provide a "safe harbor" for YouTube's service. They will parse copyright case law and debate such legal doctrines as "contributory infringement" and the defense of "fair use." Before the forest becomes lost in those trees, however, it's important to make three basic points.
First, copyright law plays a crucial role in protecting the rights of artists and others who develop and distribute creative work -- but it must do so while making room for technological innovation. Modern video and audio technologies make it possible for every basement to become a recording studio and every street corner a movie backdrop. These creative works need an audience. Sites such as YouTube and Microsoft's Soapbox are obvious and natural means to that end, and copyright law must find a way to let them flourish.
Yes, some people will slip unlicensed content into the mix, uploading a clip from "Mean Girls" or offering as their own pirated footage of Homer Simpson or Jon Stewart. But the law cannot condemn an entire technology merely because on occasion it will be abused. Copyright law must draw a balance. It must improve technologies without banning them; it must set penalties to discourage willful infringement without destroying incentives to pursue even borderline technologies. Copyright courts, in short, must wield scalpels, not axes.
