Cory Doctorow at BoingBoing says "Viacom terrorizes YouTube with bullshit DMCA notices" by serving YouTube with over 100,000 take down notices. The New York Times says 'Reports have been circulating in the industry that Google had offered to pay $100 million a year for the use of Viacom’s programming." John Palfrey at Harvard takes a more balanced view. Donna Bogatin at Digital Markets sees both Viacom and Google as big corporate bullies.
UPDATE: Mark Cuban turns the tables and says "GooTube Terrorizes Copyright Owners by Witholding Filters"
Cory Doctorow cites one example of a video that appears not to be a violation, and suggests;
"And Google can take steps now to reduce that load: sue the living shit out of Viacom. We've got precedent -- the Diebold debacle -- for the idea that abusing the DMCA takedown process is illegal. Courts have been willing to punish this kind of excess by awarding fees and damages."
Cory, I don't think one video, or even 100 videos, out of more than 100,000 constitutes "abusing the DMCA takedown notice process". I am painfully aware of how the DMCA works from my days at Napster. Here is an explanation from Wikipedia. Note steps 6 and 8 to see how easy it is to put content back up.
Here's an example of how the takedown procedures would work:
- Alice puts a copy of Bob's song on her AOL-hosted website.
- Bob, searching the Internet, finds Alice's copy.
- Charlie, Bob's lawyer, sends a letter to AOL's designated agent (registered with the Copyright Office) including:
- contact information
- the name of the song that was copied
- the address of the copied song
- a statement that he has a good faith belief that the material is not legal
- a statement that, under penalty of perjury, Charlie is authorized to act for the copyright holder
- his signature
- AOL takes the song down.
- AOL tells Alice that they have taken the song down.
- Alice now has the option of sending a counter-notice to AOL, if she feels the song was taken down unfairly. The notice includes
- contact information
- identification of the removed song
- a statement under penalty of perjury that Alice has a good faith belief the material was mistakenly taken down
- a statement consenting to the jurisdiction of Alice's local US Federal District Court, or, if outside the US, to a US Federal District Court in any jurisdiction in which AOL is found.
- her signature
- AOL then waits 10-14 business days for a lawsuit to be filed by Bob.
- If Bob does not file a lawsuit, then AOL puts the material back up.
This really puts the pressure back on Viacom to file thousands of lawsuits within 10 to 14 business days, in hundreds of different jurisdictions. Based on my experience at Napster, this isn't going to happen.
What will happen? The most likely scenario is that most of the 100,000 videos will be taken down without protest from the person who uploaded it, because it probably is infringing content. However, some, perhaps 1% or 1,000, will respond with a counter-notice to put the content back up. Then Viacom will need to decide which of these 1,000 responders they will choose to sue. They will pick a few high profile videos from a "prolific and frequent" posters of videos and sue them. This is the IRS approach; sue a few high profile individuals to scare the rest of the population into compliance.
What is fair and right? Creators of content have the right to decide how and where their content will be used. Some will choose to let it be shown on YouTube because they feel it will promote their brand. Others will choose to keep their content off YouTube. It is their choice, not ours, not YouTubes. It doesn't matter how short-sighted we think Viacom is, or how they don't see the potential value to their brand.
If this was software we were talking about then some of us might have a completely different view of what is fair and right. If my software was being offered for free to millions of people without my permission I would not be happy. I would feel like I was being ripped off. If I wanted to have my software available to everyone I would have posted it on SourceForge as Open Source and put a GPL license on it. It is my choice, not yours. Taking copyrighted software and putting in an the Internet for everyone to take is illegal. Music and videos are no different.
Free Enterprise and economics always win - Viacom has been negotiating with YouTube for several months on royalties or a percentage of revenue for their content. They have failed to reach an agreement, so Viacom chose to request a "Take Down" of their content. Perhaps this will get both sides back to the negotiations and a reasonable settlement will be worked out. Other content owners have settled with YouTube so it seems there should be a reasonable compromise available. It just takes time. We ran out of time at Napster. It took 3 or 4 years for the record labels to make a deal with iTunes and other music services. It will eventually happen with video too.