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Lessig on the YouTube Viacom suit

Today’s New York Times has an op-ed piece by Lawrence Lessig. Lessig is a wildly influential voice for all things relating to copyright. We’re fortunate to have a number of his interviews on this site. His op-ed piece is, per usual, full of important information.

In it,he states that companies are attempting to circumvent the legislative body of our fair country (i.e. Congress), and instead create laws in the Judicial body (i.e. the Supreme Court). This is precisely what happened nearly two years ago when the Supreme Court expanded the copyright law in the Grokster case to make companies who created technology that enabled infringing technology liable. This important case not only overturned the ruling of the 1984 Sony Betamax decision, it also created an opening, according to Lessig, for companies to use the high Court to legislate. Historically, the Court had deferred to Congress to keep up with the times, and make the necessary changes via statute; the Court’s role was to enforce these statutes.

Lessig states that the effect of this shift is significant, as it allows the plaintiffs to avoid the political hurdles endemic to trying to alter policy at the congressional level, and instead go right to the Court. As Lessig states, “in Congress, you need hundreds of votes. In the courts, you need just five.”

Lessig continues on to support Google/YouTube in this issue, as he feels that Viacom’s interpretation of the DMCA’s Safe Harbor provision is erroneous. Simply put, the DMCA states that it is the responsibility of the copyright holder to inform anyone who is infringing upon their copyright by, for example, hosting it from their site. The infringing party, once alerted, must remove the content. Viacom, however, feels that Google/YouTube should be proactive in removing this content. This is a burden shift that is not delineated in the DMCA, and thus Lessig is very much opposed to it. He fears that Viacom’s suit will find its way to the Supreme Court, and become law. If this occurs, it would repudiate the Safe Harbor provision, and make anyone who hosts material potentially liable should they be infringing; whether they are aware of it or not, because the burden would be on them rather than on the copyright holder.

All of Lessig’s points are well stated, and completely reasonable. Additionally, it’s wonderful to have someone who can take such an enormously complex subject and make it not only understandable but also relevant to the layperson. Finally, the fact the Lessig has the deserved clout to get his message out widely via the NY Times makes it all the more satisfying.

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