Here comes another in the long line of lawsuits between media companies and Internet companies over who gets to distribute content. This time it's Viacom, the enormously rich owner of properties like Paramount Pictures and Comedy Central, suing Google, the enormously rich owner of YouTube.
The issue: Viacom wants to get paid more than Google wants to pay it for all of those fuzzy, two-minute clips from programs like "The Daily Show" that users post to YouTube. The companies tried to negotiate a deal, but the talks failed, so Viacom is suing for $1 billion.
I am not a lawyer, and I have no idea how this lawsuit will wind up. I suspect it is mainly a bargaining tactic by Viacom. But I know one thing: This fight isn't primarily about consumers and their rights, and its outcome won't necessarily make things better for Internet users.
Consumers won't be a party to this case any more than they were in the room when the latest major copyright law was passed by Congress. That law, the 1998 Digital Millennium Copyright Act, was enacted at the behest of record labels and movie studios. Their purpose was to stop people from using computers and the Internet to distribute digital copies of material to which they didn't hold either the copyright or a distribution license.
That idea makes sense. Unlike some Internet zealots, I believe that intellectual property is real and that some form of copyright is appropriate to protect it. I am against the unlicensed copying of DVDs for sale on street corners, or the mass uploading of songs to so-called sharing sites.
The Internet and technology companies managed to insert a clause in the DMCA sparing them from penalties for carrying copyright content on grounds they were just innocent conduits. That will be a big issue in the Viacom case. But consumers got no such get-out-of-jail-free card.
In fact, the DMCA, and other recent laws and regulations passed under pressure from media companies, are pretty hostile when it comes to consumers. They turn essentially innocent actions into unlawful behavior, because they define copyright infringement too broadly. They have given rise to a technology called Digital Rights Management that causes too many hassles for honest people and discriminates against the new digital forms of distribution.
Even Apple CEO Steve Jobs, who created a DRM system for music that actually has worked, recently called for an end to copy protection of legally sold music, mainly because the record labels apply that protection only to online sales, not to physical compact discs.
Most honest people wouldn't consider it piracy to buy a CD, copy it to a computer and email one of the song files to a spouse or friend. But the record industry, backed by the laws it essentially wrote, does. Most honest people wouldn't think that uploading to YouTube a two-minute TV clip, which they paid their cable company to receive, is piracy. But Viacom, backed by the laws its industry essentially wrote, is demanding that Google remove all such clips.
To be fair, Viacom, unlike the misguided record labels, isn't suing the actual consumers who posted these clips. It's suing Google because it claims Google is making money from them and refusing to pay for that privilege.
Google isn't blameless here, either. It does make money, at least indirectly, from other companies' copyright material, for which it didn't pay, even though it has negotiated some paid deals and says it is willing to negotiate others. And while Google says it diligently removes all copyright clips for which it hasn't secured paid rights, every YouTube visitor knows that this system is, at best, imperfect.
As a nonlawyer, I think these clips seem like "fair use," an old copyright concept that seems to have weakened under the advent of the new laws. Under fair use, as most nonlawyers have understood it, you could quote this sentence in another publication without permission, though you'd need the permission of the newspaper to reprint the entire column or a large part of it. A two-minute portion of a 30-minute TV show seems like the same thing to me.
But why should I have to guess about that? What consumers need is real clarity on the whole issue of what is or isn't permissible use of the digital content they have legally obtained. And that can come only from Congress. Congress is the real villain here, for having failed to pass a modern copyright law that protects average consumers, not just big content companies.
We need a new digital copyright law that would draw a line between modest sharing of a few songs or video clips and the real piracy of mass distribution. We need a new law that would define fair use for the digital era and lay out clearly the rights of consumers who pay for digital content, as well as the rights and responsibilities of Internet companies.
If you don't like all of the restrictions on the use of digital content, the solution isn't to steal the stuff. A better course is to pressure Congress to pass a new copyright law, one that protects the little guy and the Internet itself.