YouTube 1, Viacom 0, Fair Use -1

Viacom's defeat in a $1 billion infringement lawsuit against YouTube is likely to further erode consumers' fair-use rights.

Entertainment giant Viacom has lost its $1 billion lawsuit against YouTube after it failed to convincingly demonstrate that YouTube knowingly enabled and tolerated copyright infringement on its site. This may prove to be one of the most significant, precedent-setting lawsuits in the internet era. The New York State court’s decision establishes ground rules for policing content on video aggregators – and video, by every measure, is the future of the internet.

As soon as District Judge Louis L. Stanton dismissed Viacom’s claims, various interested parties began to put a spin on the decision. The Recording Industry Association of America (RIAA) – which to many represents the brownshirts of internet freedom – immediately howled in outrage at such a gross miscarriage of justice.

According to RIAA president Cary Sherman, the court’s decision “will actually discourage service providers from taking steps to minimize the illegal exchange of copyrighted works on their sites.” Never mind that it’s quite clear in the minds of Sherman and the RIAA that we the audience have no fair-use rights and must learn our proper place in the new wired order (which is to shut up and pay up … and pay up and pay up). Reflecting the delusional state that the recording industry has maintained since the earliest days of the internet, Sherman would have us believe that some preexisting “careful balance struck within the law” has been upset, and the new direction of the courts is nothing less than “bad public policy.”

When it comes to the past few decades of copyright law, precious few scholars would argue that any such thing as a “careful balance” has ever existed. What Sherman really means is that the law’s overwhelming bias in favour of entertainment corporations has been ever so slightly reoriented toward consumers, and thus surely all hell will break loose.

Sherman glosses over the fact that Viacom is not suing YouTube for its current practices. Almost every major music company is working with YouTube to distribute their music videos, and YouTube uses a sophisticated content ID system that effectively stops most illegal uploads. Indeed, the real problem within the current copyright regime in both Canada and the United States is that it does very little to protect consumers’ rights of fair use, artistic appropriation, and commentary. It’s these rights that YouTube continues to ignore and violate, and we will not see the RIAA, Google, or any other major corporation standing up for them.

Over the past century, the trajectory of the courts has been the extension of corporate property rights and the minimization of consumer and artistic rights. Even though Stanton’s decision favours YouTube, it does little to protect or extend consumer rights. In fact, some argue that it may further erode fair-use rights.

In his decision, Stanton noted that Congress recognized that holding broadband providers, search engines, and video hosting companies liable for every instance of infringing activity would stifle innovation and competition. Yet the RIAA effectively says that Congress is wrong. The RIAA seeks nothing short of absolute control over intellectual property – a degree of control (and cultural tyranny) that goes far beyond the original intention of copyright law.

Those close to the entertainment industry like to spin this decision as a gross violation of the rights of entertainment corporations. Consider the opinion of Cory L. Andrews, senior litigator at the right-wing Washington Legal Foundation: “The U.S. District Court for the Southern District of New York on Wednesday effectively granted blanket immunity to website operators who tolerate and profit from copyright infringement.” This is nonsense. On the contrary, the court established clear principles to distinguish due diligence from willful encouragement of infringing behaviour.

Perhaps the best assessment of the case was made by the Electronic Frontier Foundation’s senior staff attorney, Kurt Opsahl, when he wrote that the decision, "while a big win for YouTube, is hardly groundbreaking. It simply reconfirms what lawyers for internet companies have been telling their clients for years, based on the plain language of the [Copyright Act's] safe harbours."

It’s a pity there’s not a billion-dollar lawsuit on the table to protect our rights to criticize corporations (a right under constant attack) and appropriate content for parody and other forms of fair use. If we ever won such a suit, all of corporate America would howl.