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Congress Must Make Clear Copyright Laws To Protect Consumers
By Walter S. Mossberg
Here comes another in the long line of lawsuits between media
companies and Internet companies over who gets to distribute content.
This time it's Viacom, the enormously rich owner of properties like
Paramount Pictures and Comedy Central, suing Google, the enormously
rich owner of YouTube.
The issue: Viacom wants to get paid more than Google wants to pay it
for all of those fuzzy, two-minute clips from programs like "The Daily
Show" that users post to YouTube. The companies tried to negotiate a
deal, but the talks failed, so Viacom is suing for $1 billion.
I am not a lawyer, and I have no idea how this lawsuit will wind up.
I suspect it is mainly a bargaining tactic by Viacom. But I know one
thing: This fight isn't primarily about consumers and their rights,
and its outcome won't necessarily make things better for Internet
users.
Consumers won't be a party to this case any more than they were in the
room when the latest major copyright law was passed by Congress. That
law, the 1998 Digital Millennium Copyright Act, was enacted at the
behest of record labels and movie studios. Their purpose was to stop
people from using computers and the Internet to distribute digital
copies of material to which they didn't hold either the copyright or a
distribution license.
That idea makes sense. Unlike some Internet zealots, I believe that
intellectual property is real and that some form of copyright is
appropriate to protect it. I am against the unlicensed copying of DVDs
for sale on street corners, or the mass uploading of songs to
so-called sharing sites.
The Internet and technology companies managed to insert a clause in
the DMCA sparing them from penalties for carrying copyright content on
grounds they were just innocent conduits. That will be a big issue in
the Viacom case. But consumers got no such get-out-of-jail-free card.
In fact, the DMCA, and other recent laws and regulations passed under
pressure from media companies, are pretty hostile when it comes to
consumers. They turn essentially innocent actions into unlawful
behavior, because they define copyright infringement too broadly.
They have given rise to a technology called Digital Rights Management
that causes too many hassles for honest people and discriminates
against the new digital forms of distribution.
Even Apple CEO Steve Jobs, who created a DRM system for music that
actually has worked, recently called for an end to copy protection of
legally sold music, mainly because the record labels apply that
protection only to online sales, not to physical compact discs.
Most honest people wouldn't consider it piracy to buy a CD, copy it to
a computer and email one of the song files to a spouse or friend. But
the record industry, backed by the laws it essentially wrote,
does. Most honest people wouldn't think that uploading to YouTube a
two-minute TV clip, which they paid their cable company to receive, is
piracy. But Viacom, backed by the laws its industry essentially wrote,
is demanding that Google remove all such clips.
To be fair, Viacom, unlike the misguided record labels, isn't suing
the actual consumers who posted these clips. It's suing Google because
it claims Google is making money from them and refusing to pay for
that privilege.
Google isn't blameless here, either. It does make money, at least
indirectly, from other companies' copyright material, for which it
didn't pay, even though it has negotiated some paid deals and says it
is willing to negotiate others. And while Google says it diligently
removes all copyright clips for which it hasn't secured paid rights,
every YouTube visitor knows that this system is, at best, imperfect.
As a nonlawyer, I think these clips seem like "fair use," an old
copyright concept that seems to have weakened under the advent of the
new laws. Under fair use, as most nonlawyers have understood it, you
could quote this sentence in another publication without permission,
though you'd need the permission of the newspaper to reprint the
entire column or a large part of it. A two-minute portion of a
30-minute TV show seems like the same thing to me.
But why should I have to guess about that? What consumers need is
real clarity on the whole issue of what is or isn't permissible use
of the digital content they have legally obtained. And that can come
only from Congress. Congress is the real villain here, for having
failed to pass a modern copyright law that protects average
consumers, not just big content companies.
We need a new digital copyright law that would draw a line between
modest sharing of a few songs or video clips and the real piracy of
mass distribution. We need a new law that would define fair use for
the digital era and lay out clearly the rights of consumers who pay
for digital content, as well as the rights and responsibilities of
Internet companies.
If you don't like all of the restrictions on the use of digital
content, the solution isn't to steal the stuff. A better course is to
pressure Congress to pass a new copyright law, one that protects the
little guy and the Internet itself.
Email me at mossberg@wsj.com.
Copyright 2007 Dow Jones & Company, Inc. All Rights Reserved.
Monty Solomon (monty@roscom.com)