Viacom’s YouTube loss a victory for online speech, collaboration

This article was originally published on Salon on June 24, 2010.

Judge says YouTube obeyed copyright law in widely watched legal case


Echoing most news media, the New York Times called it “a major victory for Google in its battle with media companies,” but yesterday’s decision(pdf) by a federal judge in a closely watched copyright case was, most of all, a victory for free expression.

U.S. District Judge Louis L. Stanton tossed out a Viacom lawsuit against Google’s YouTube video site, in which the media conglomerate said YouTube, by allowing its copyrighted videos to be posted on the site, was was contributing to copyright infringement.

At issue, in its most basic form, was whether the “safe harbor” provisionof the Digital Millennium Copyright Act (DMCA) meant what it said. Boiled down and oversimplified, safe harbor means this: If you host other people’s work, you are not immediately responsible for what they post on your site. Once notified by a copyright holder that you’re hosting infringing work, you’re obliged to take it down.

This part of the DMCA — a law that has many otherwise terrible elements — has been a boon to speech in the Digital Age. Online, we live in collaborative spaces much more than the top-down, centralized media world of the past. If site hosts had to investigate and approve everything their users wanted to post, they’d be unable to exist as we know them today. That’s what the Copyright Cartel, of which Viacom is a charter member, would prefer. But it’s not what Congress voted to do.

Judge Stanton said the DMCA’s notification system worked fine in the case at hand. Even Viacom agreed that “when YouTube was given the (takedown) notices, it removed the material.” (Do read the ruling in full; there’s enough plain English that you can learn a lot even if you don’t understand lawyer-speak.)

I don’t mean to suggest that the DMCA’s notification system is perfect; media companies are famous for abusing the process, too often telling sites that all sorts of perfectly legitimate content is infringing on their copyrights. Check out the great Chilling Effects site for voluminous examples. If anything, the DMCA still gives copyright holders too many weapons to prevent legitimate expression. But the safe-harbor provision has been a big help in general.

It’s not the only time Congress has acted to encourage robust activity online. A related provision in a different law (Section 230 of the CDA, or Communications Decency Act) protects site hosts when people posting comments, for example, say things that others find defamatory. It’s the commenter, not the site host, who’s responsible for the speech.

Needless to say, the battles are not over. Viacom said it’ll appeal Stanton’s ruling, and Section 230 is constantly being picked at by those who want to shut down speech they don’t like.

Still, yesterday’s decision is a gratifying milestone. Congratulations to Google, but especially to the rest of us who believe in the widest possible online expression.

UPDATE: My friend Miguel Helft, who reported the decision for the New York Times, writes:

The NYT indeed said it was a major victory for G. But in the second graph we made the other point, which is that the ruling could have a favorable impact on the entire UGC world, which is in line with your argument. We later expanded on that with commentary from various analysts/legal minds.

Fair enough. But the story lede (for arcane reasons journalists call the first, or lead, paragraph in a story the lede) and headline were about Google. I looked long and hard for a lede in any news outlet, but didn’t find one, that focused on the victory for free expression along with the immediate Google win or Viacom loss.

Some comments here suggest it’s time for a remedial column or two on copyright. Whether copyright holders like it or not, they don’t have the absolute right to decide how their published work may be used, and by whom, through eternity. And those who believe we should ban tools that can be used for illicit purposes, not just beneficial ones, should ask themselves what would happen if we applied that standard widely.