Singularity Law

Accepting the old adage, “if you can’t beat ‘em, join ‘em,” some record labels are posting their own video clips on some of the very same P2P networks they claim are violating their copyrights. Suretone Records, a label of the Universal Music Group, with popular groups like Weezer and Drop Dead Gorgeous, is reported to have begun posting video clips of some of their artists online at free video-posting sites. These clips are generally abbreviated versions of the full music videos, which direct users to the complete videos at the company’s website. These videos are also not copy protected, so they can be copied by users and posted elsewhere. Indeed, the record companies fully expect them to be widely reposted by users. The New York Times quotes Avril Lavigne’s manager saying that he fully expected fans to post the clips on file-sharing networks. “This becomes public property,” he said. “We’re not going to tell the consumer how to consume.”

The company apparently thinks that this is a good marketing ploy – seeding the market with a “taste” of their artists, hoping to get users to come to company-controlled websites to see the entire video. But did they clear this with their lawyers?

To my way of thinking there is a significant danger in “sleeping with the enemy.” First, the company is adding to the number of non-infringing videos available on these video sites. Since the traditional test for vicarious liability is whether the technology/service has a substantial non-infringing use, the more authorized or non-infringing videos on the site, the more likely a court will find that the owner of the site is not vicariously liable for unauthorized postings.

Second, once “legal” copies of an artist’s videos are posted, it makes it much more difficult for the copyright owner to argue that the service provider “knew or should have known” that videos of their artists posted by third parties were infringing. How is the service provider to differentiate between “legitimate” postings by the copyright owner of videos of a popular group like Weezer, and “illegal” postings of videos of the same artist? Particularly when the copyright owner “expects” fans to repost these videos elsewhere.

Third, courts are likely to be much less sympathetic to a copyright owner that claims that a video site is a “copyright pirate” parasitically making money off of hard-working copyright owners, while at the same time using the alleged pirate’s free service to promote its own business interests.

Copyright owners cannot be seen to be talking out of both sides of their mouths at the same time. Either these free, video-sharing sites are the scourge of the earth and should be stamped out without mercy by the courts, or they aren’t. If I were a judge or jury, I would not be too sympathetic to a copyright owner who claims that these sites are illegally profiting from the presence of their artist’s videos on their site, when they are posting some of the videos themselves.