Copywrite

I have stayed away from this for the most part, because I wanted to mull a bit on how the analysis from the Napster and Grokster analysis decisions would play out. I have been leaning toward the sort of position posited by Michael Fricklas, one of Viacom’s attorneys, in the Washington Post this week (Our Case Against YouTube), which is that the DMCA will not protect YouTube because of their centralized database, direct knowledge of the infringement, right and ability to control, and direct financial gain. Under Grokster, these guys haven’t a leg to stand on.

However, last Thursday I was driving Prof. Barry Scheck around town sightseeing and to give a speech. Towards the end he asked me what I thought about the suit, and out of my mouth came the following: “There is a non-trivial argument that the Digital Millennium Copyright Act (DMCA Section 512) grants, and was intended to grant, protection for just this type of service provider. While they are aware that copyrighted material is uploaded, they provide a very easy mechanism for rightsholders to identify the material and act quickly (expeditiously) to remove it. The fact that they know it happens is not the same as having direct knowledge of each infringement, which is the benchmark for garnering the DMCA protection. Also, William Patry hired on as Google’s in house copyright counsel. I expect him to be on the winning side.” (At this point Scheck started talking about how “Bill” Patry was a friend, and when did he go to Google, etc. – stuff that doesn’t matter here).

And, in the end, I think that my off the cuff answer is much better than any strained and dutifully precise answer I can give under Grokster. I don’t think that the court will ever get to looking at the same factors involved in the Napster and Grokster court cases–they will do a DMCA analysis, see that its provisions protect a diligent service provider like YouTube, and call it a day. If they should, I also don’t see the encouragement element that existed in Grokster. Yes, uploading a South Park joke is fun, but providing an easy tool for doing so is not encouragment, only the sign of a good product interface.

While we are on the subject, another of Viacom’s counselors, Douglas Lichtman, wrote an editorial for the Los Angeles Timeslast week. published last Saturday in which he also argued that YouTube’s knowledge of users’ actions will inevitably tip the scale in his client’s favor. I am actually quite troubled that these attorney’s are trying to lay their case out in the public forum instead of issuing a standard press release and leaving it up to the outcome of the lawsuit. While there is no rule prohibiting this type of activity, it has the appearance of impropriety, which is what kills the reputation of the profession in the mind of the general public and serves only to feather the public reputation of the attorney. This issue is too complex for a layperson to understand after reading a 500 word editorial in the Saturday edition.