In the talk I gave on Monday for IICLE on the Viacom v. Google case, one question I posed was how hypothetically to counsel clients in light of the decision and before the appeal is briefed. I posed two hypotheticals: one being a service provider like YouTube, and the other being a content provider.
For the service provider hypothetical, I mentioned that while the notice and takedown provisions under the DMCA may be difficult to comply with when there are numerous infringements, it is the system we have.
Declan McCullagh’s article on CNet entitled “RIAA: U.S. Copyright law “isn’t working” speaks to this point as well. Essentially, the RIAA complains that it is too difficult to police YouTube and other sites, and they would prefer to forge deals with intermediaries in other parts of the chain, such as broadband providers, to help keep their works from being infringed online.
The quote from YouTube’s counsel in response is as follows:
“Lance Kavanaugh, product counsel for YouTube, disagreed that copyright law is broken. “It’s our view that the DMCA is functioning exactly the way Congress intended it to,” he said.”
I’d agree with that point – this is the law as enacted, and the natural consequences of the growth of the Internet and the web since the law was enacted in 1998. It is a compromise designed to allow the sites like YouTube to function while still balancing the needs of the copyright holders. It’s not a perfect system, but it is a compromise. Whether it remains a fair compromise is the RIAA’s point.
The alternatives I’ve seen so far go too far to hurt the rights of another stakeholder in this debate – the users. For example, a “three strikes” policy for users at the ISP level has been proposed before, and shot down, because there are few procedural safeguards to protect users at that level. Who determines what is a “strike” and what are the consequences for having three? A permanent ban on broadband access? That seems harsh and has much potential for abuse.
So, while the DMCA takedown provisions are not ideal for the RIAA and the other content providers, they strike a fair compromise. Until someone can propose another fair compromise, and get it legislated, Section 512 of the DMCA is the law we have.
