CyberTech Rambler

March 30, 2007

Those pesky Safe Harbour Provision in DCMA …

Filed under: Uncategorized — ctrambler @ 1:38 pm

Viacom sued YouTube. Old News. Google, YouTube’s owner, initial response was lousy, saying things such as “Viacom should see YouTube as a market opportunity rather than sueing it”.

YouTube lawyers obviously know how it can defend itself against this kind of lawsuit. So does Google’s lawyers before they even considered purchasing YouTube. To an extent Microsoft’s, Yahoo’s and, yes, Viacom’s lawyers know it to. It is widely known as the “Safe Harbour Provision” under DCMA. Loosely speaking, it means Internet Service Providers are immune from lawsuit if it takes down infringing materials quickly after being informed by the copyright holder.

This safe harbour provision is one that the “Content Industries” and “Consumer Industries” had compromised in the drafting of DCMA. The use of “take down notices” in practice means the onus is on the copyright holder to police their copyrights.

YouTube’s lawyer rally behind the shield of this provision. Viacom’s lawyers tried to sidestep this provision. Now that Google has the time to digest and distill the lawsuit down, it decided to go on the offensive by highlighting this. Google home in on the fact that the wording of the lawsuit can be interpreted as since Viacom find it impossible for it to police YouTube, so it wants YouTube to do the policing for it. Google is doing a song-and-dance over it. And it is likely that it will win, provided of  course, it can argues that it fits the definition of “internet service provider”. This point is something Viacom’s lawyer will probably find it difficult to penetrate. Indeed, in the original complain, it did not try to do so, but rather argued that Google knows and has benefited by encouraging infringement, the charge that was the downfall of one of the P2P companies in the post-Napster period.

Some commentators argued that this lawsuit is simply both sides positioning for a better copyright deal. May be. It will be more interesting if it get decided by a law court.

Copyright holders had the responsibility of policing their work since day 1 of the copyright law. Its nothing new. They do get help from the authorities in the form of criminal penalty for large scale piracy. Lately, we see move in which they are trying to get more help by offloading their responsibility, in the form of EU’s new copyright directive making copyright infringement a criminal offense rather than a civil one (i.e., asking the state to take over copyright policing) or to get private entities to do the policing for them, as in this lawsuit. We need to help them police their work, but we cannot and should not take over the policing for them, nor allow them to shift that burden to a third party.

Copyrights holders’ record on defending their copyright work are being drag through the mud more and more these day. The poster child is of course RIAA, whose legal tactics can sometimes be seen as attempts to intimidate persons into submissions, sloppy and unreasonable. Sloppy because  when someone digs into the actual “infringement”, it can be easily argued that the evidence is simply not there. Unreasonable, because their lawyers choose to impede every attempt for the defendant to get information to defend themselves. Their latest tactics, i.e., asking Universities to deliver “settlement offers” letters to their students, hit the brick wall in several universities. Interestingly, one even demanded reimbursement to send the letters to the students.

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