Wednesday, March 24, 2010

2.25.10 GOOTUBE

This article originally appeared in the 2.25.10 issue of Metroland.

The YouTube / Viacom lawsuit, which has going on for so long I’d forgotten about it, bubbled up again last week when both sides filed summary judgment papers in federal court in San Francisco. Viacom (the media giant that owns cable networks like Comedy Central, MTV and BET along with movie studios, etc.) is suing the bejesus out of YouTube for, in Viacom’s words, operating “as a haven for massive copyright infringement. The lawsuit was brought, curiously or not, just a few months after Google bought YouTube for 1.7 billion smackeroos. Viacom is seeking a billion dollars in damages.

The filings reveal a lot of the kind of litigational nonsense one would expect from corporate behemoths going the scorched earth route. For example, YouTube seems to have “lost” a great deal of internal emails that would otherwise be relevant in the case. One reason they gave is “computer crashes.” Whoopsy! Viacom, on the other hand, has included in its briefs a bunch of quotes of YouTube bigwigs that look incredibly damning, but YouTube has responded by providing the entire communications from which the quotes were taken; time after time it’s clear that Viacom has wildly and deliberately misrepresented what the bigwigs were saying.

The practice of taking words totally out of context is something I see in litigation all the time, and I’ve never been able to get my brain around why lawyers do it, or why courts tolerate it. It’s usually simply a matter of the other side jumping through a few hoops to prove the deception, and the side responsible for stretching the truth to the breaking point runs the risk of looking bad. But they rarely do, as judges typically consider these kinds of shenanigans fair game. I suppose the offending lawyer figures there’s some chance the misquote will not be challenged, or that maybe some judge or juror will get duped into buying the lie, or at the very least that the making of the deceptive argument will burn up the other side’s resources in having to counter the lies with facts. As far as I’m concerned it’s a hideous practice that advances neither the truth nor justice, it wastes all kinds of time and money, and it’s one of the justifiable reasons why people hate lawyers.

Anyway, what all these court papers also show is that Viacom really doesn’t have much of a case. Web portals like YouTube are protected by the “safe harbor” provisions of a law called the Digital Millenium Copyright Act, which says that YouTube generally doesn’t have to actively monitor what’s being posted on its site. Once the portal is informed that there’s infringing stuff posted, it has a duty to investigate and take down offending material. This merely reaffirms that it’s the copyright owners’ duty to police its copyright, not someone else’s. In other words, it’s Viacom’s job, not YouTube’s.

This makes perfect sense. Because often the copyright owner is fine that their stuff has been posted without permission. A few years ago I noticed that folks had posted Blotto’s old videos on YouTube. My reaction was “great, now I don’t have to do it.” I’d been meaning to do it myself but was too lazy to figure out how. We wanted the videos up, for whatever promotional value they might bring. Somebody even posted “Lifeguard” under the heading “Worst 80’s Video Ever.” It’s closing in on a quarter-million hits, and the comments are amazing. And I ain’t touchin’ it.

And I’m certainly not alone here. Lots of copyright owners turn a blind eye to “unauthorized” posts. In fact, Court papers filed by YouTube show that Viacom, while screaming bloody murder about “massive infringement” on YouTube, was at the same time surreptitiously putting up thousands of its own programs for promotional purposes. Or maybe it was trying to set up YouTube for a disingenuous infringement rap.

Several times a day someone sends me a YouTube link, usually of some old music video that’s brilliant, funny, or revealing, often all three at once. Does somebody own the copyrights to these things? Undoubtedly. Did they put them up themselves? Maybe, maybe not. And are they mad that their stuff’s on the internet? Probably not. They’re probably delighted.

In any event, in the lawsuit Viacom is trying to create an affirmative duty on the part of YouTube, and every other internet portal to actively monitor everything that comes its way and to block “obviously copyrighted” material posted by a non-owner, basically eviscerating the safe harbor protections that allow all kinds of cool stuff to get put on the internet. If they win, there will be a lot less stuff to enjoy on the internet, and a lot fewer places to enjoy them.

Thursday, March 11, 2010


So I look at the timeless issue of infringement v inspiration, which has been popping up a lot lately.

This article originally appeared in the 3.11.10 issue of Metroland.


It’s just one of those serendipitous things in my law practice that I get waves of similar matters thrown at me all at once. One week maybe it’s a gaggle of writers with publishing or licensing deals, the next week it’s a series indy film makers looking for quick and dirty investor contracts; lately it’s been extremely perplexing and dicey infringement problems with visual artists.

This has been particularly surprising because I’ve had very, very few of these “is it infringement or not” issues in the 20-or-so years I’ve been at this. Typically, the situation is that somebody just took an entire work and the issues are who actually created the work or whether there was permission to use the work. Sometimes it’s a matter of somebody’s hand in the cookie jar, like cutting and pasting off a website, and the only issue is how much the damages ought to be and whether we can collect them. But almost all the infringement cases I’ve dealt with have involved fighting over the same work, not two works that are really similar, with the creator of the older work crying foul.

Which is kind of weird because the fundamentals of what’s infringement often dominate my classes and lectures. Many people, artists included, think there’s a set of rules that dictate whether a work infringes, like a “5-note rule” in music or a “20% rule” in visual media. There’s not. Infringement is a wildly subjective thing that the law struggles to turn objective, and fails miserably.

The test is whether the second work copied from the first, and if so, if the second work took too much of the “protectable elements” of the first. Duh. Not much help there. But this test does set up endless metaphysical discussions, technical discussions, esoteric discussions, and moral discussions. Then somebody always raises the “there’s no such thing as originality” canard. Or quotes Picasso: “mediocre artists borrow, great artists steal.” Which wasn’t even an original quote by Picasso. He stole it from Igor Stravinsky, who stole it from Henry James, who nicked it from Oscar Wilde, who got it from...

Anyway, over the last couple of weeks I’ve had new clients on both sides of this fence, artists claiming to have been ripped off, and other folks accused of ripping off other artists.

In none of these cases were works simply reproduced. But in all of the cases the second work was aware of the first, and borrowed liberally. In all of the cases, one looks at the junior and senior works and says “well, yeah, there it is.” And in none of the cases can a credible fair use argument be made—the junior works don’t comment on the senior works, nor are they transformational in purpose, media, or message. The junior works just clearly and boldly took from the senior works. But is it infringement? Or is it inspiration?

This is where the law comes in, and as I said before, the law fails miserably. There’s two tests the courts have developed to analyze claims of infringement like this. The junior user, the alleged infringer, always tries to hide behind the so-called “subtractive” test. The works are picked apart with a fine-tooth comb and all the dissimilarities are pointed out: “the clouds in the sky are different”, “the road is in a different place”, “the film exposure and color intensities vary wildly”, stuff like that. The longer the list the better. And the argument is that all that’s left after this surgical chipping away of details, all that was really copied, were ideas, and ideas can’t be protected by copyright. Not a bad argument. We don’t want to give anybody a monopoly over an idea.

The “victim”, on the other hand, is going to argue the “totality” test. Here, the “infringer” took the “essence”, the “look and feel”, the “heart” of the first work. Not a bad argument either, especially in the cases like mine, where you look at the two works and say “well, yeah.” You can’t just rearrange the chairs and say you’re now in a different house.

The problem being that with all of my present cases, well-made arguments under each test come to opposite results. Trust me, I’ve been making them over here for weeks. Under the subtraction argument, no infringement. Under the totality test, absolutely infringement. Not even close.

So what do we do? March off to court? And let a judge or jury decide? Nobody’s going to admit it, but that would be insane. Judges and juries are all well and good, but putting questions like this before them would be tantamount to a coin toss. With lawyers, which makes it worse than a coin toss. And WAY more expensive and time consuming.

So we’re left with the two sides huffing, puffing, bluffing, threatening, both sides knowing in their heart of hearts that it’s just so much sound and fury, signifying nothing.