A couple of people have asked me about the Viacom/Google battle. It seems (surprise!) that some of the people who post videos on YouTube (a Google subsidiary) post clips from Viacom broadcasts. That gives Google potential vicarious third-party exposure for contributory or induced infringement. At least, that’s what Viacom thinks. Google, I’m certain, has numerous legal arguments to counter Viacom’s claim, with fair use playing a central role in the overall scheme of its argument. Viacom, however, feels that it has a good enough case to have sued Google for a cool billion dollars.
So various folks have asked me why I haven’t posted anything about this
case yet. After all, it sounds like it should be right up my alley.
The answer is that it is right up my alley. In fact, its soooooooooo up
my alley that I’ve already said everything substantive that I have to
say about it. I wrote about this case roughly five years before it was
filed, omitting only the proper nouns (see Digital Phoenix). To recap:
Setting aside the various technical arguments and the propriety of third party liability, the crux of this debate is that Viacom sees its copyrighted material circulating without its authorization. Google claims that given the circumstances, it doesn’t need authorization. Why not? Because copyright law never gave copyright holders carte blanche control of their works. The public retains the rights to make fair use of copyright works without authorization—and even against the explicit wishes of the copyright holder.
Who has the better case? That one is tough. Viacom clearly has the easier case. Its material is certainly circulating without its authorization, and Google is a for-profit entity whose primary motivation (cute slogans notwithstanding) is profit maximization, not public service. Google must show that even though profits may motivate its behavior, it is actually enabling a significant public benefit.
That’s where things really get bogged down, because Google, though a superb technology company and an excellent investment (disclosure: I own neither Google nor Viacom shares directly, though one or both may be sitting in one of my mutual fund holdings), is running an intentionally boneheaded PR campaign—a campaign so bad that it will cause it significant pain eventually, even if it makes it through this particular case unscathed.
Google has joined most of the rest of the tech community in downplaying economics. In the standard debate over copyright policy (distinct from law), copyright holders like to tout property rights, while techies like to tout their contributions to knowledge and culture. As a result, tech companies have wide support in seminar rooms across America—and in a dwindling number of other places. The day after the Viacom lawsuit made the papers, the morning DJ on my radio station (KFOG) framed the following question: “Should Google be allowed to steal Viacom’s stuff?” Does anyone think the answer is “yes?” If that’s the question, Google has lost. And in the court of public opinion, that is fast becoming the question.
It needn’t be that way. I’ve written extensively that the proper framing of the question is: “Should we let Viacom impede economic growth?” What the copyright holders are trying to do poses a danger to the American economy. They are attempting to use copyright law---a regulatory system that is supposed to promote creative expression—to impede promising avenues of technological innovation. In the early information age, when progress and success hinge upon novel and clever uses of information and communication channels, such attempts are truly dangerous.
The tech companies know all of this, but they refuse to lead with it. As a result, the public at large does not know it, and so public attitudes are rigidifying in the wrong direction. So why don’t the tech companies push it? If you know, please tell me. I’ve been trying to convince them (including Google) to bring me onto their teams to help recalibrate their public explanation campaigns. To date, I’ve received no expression of interest.
A well-place engineer from Sun recently told me that the tech companies were afraid that pushing an economic argument would seem self-serving. Such an explanation might work, were corporate America populated by shrinking violets who refrained from ever taking a position on a public policy matter lest the public take it the wrong way. No, fear of appearing self-interested can hardly explain the phenomenon.
What are some other reasons? My best guess is that they’re afraid of losing. By acknowledging that the law is unsettled and an appropriate venue for a policy debate, the techies might weaken legal positions they need for specific litigation matters (such as this one). In the meantime, they might anger copyright holders so much that they will lose potentially lucrative content-dependent business to quieter competitors. Even that answer, though, doesn’t square with my understanding of our corporate culture.
So what’s the answer? I wish I knew. But if there were ever a posting on The Informationist to which I would appropriate responsive comments, this is it. Perhaps I’ll figure it out someday soon. Or—in a move that would make me even happier—the tech companies will figure it out someday soon.
My phone lines are open in case they do.
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