Singularity Law

The news media and blogosphere have been abuzz about the move by Viacom to have all of its content removed from YouTube. Viacom paid someone (and probably a lot of someone’s) to compile a list of 100K video clips on YouTube that arguably infringe its copyrights (I say “arguably” since news reports indicate that many of the takedown orders were directed at content that Viacom does not own). Why go to the expense? There are many possible reasons:

1. Viacom actually thought that this was a smart business decision intended to protect its intellectual property. Never mind the fact that once the videos are taken down by YouTube, many of them will probably just be reposted by the same people who posted them in the first place. And never mind the significant, negative publicity this act has garnered.
2. Viacom thought it would financially cripple YouTube (now owned by Google) and force the company to install software to block infringing software. The first is unlikely. Removing the videos will cost something, but certainly won’t bankrupt the company. Whether it decides to install blocking software will not result from Viacom’s takedown orders. If it happens, it will result from business arrangements it enters into with content providers who want to insure that all of their content available on YouTube is “official,” of the best quality, and chosen specifically by the content providers.
3. Viacom wanted to deter others (users? posters? other online services that allow the posting of videos?) from posting its content online. If history has shown us anything, takedown orders and litigation have not deterred anyone from posting content online if they decide they want to do so. The number of illegal downloads of music increased after Napster was shut down, and even after the RIAA began suing users for downloading music.
4. Viacom needed to show its investors that it was doing something to protect their investment. This is more probable than any of the foregoing. Perception is often more important that reality – particularly when you are dealing with people who are not particularly technological savvy and who would themselves be deterred by such actions. Even if the takedown demands do not result in any appreciable decrease in Viacom content on YouTube (or elsewhere), investors will be pleased to see Viacom is taking action.
5. Viacom wanted to “soften up” YouTube, so that it can get a better licensing deal for legally posting its content on the service. Some commentators are opining that Viacom only sent the notices after YouTube turned down its licensing proposal. Viacom’s CEO has told the Wall Street Journal that “We cannot continue to allow YouTube or Google to continue to profit from our content without a reasonable commercial agreement.” Google may decide that it is cheaper in the long run to cut a better licensing deal for Viacom content than to periodically have to remove thousands of videos. Or it may decide to negotiate with other, more cooperative content providers and leave Viacom out in the cold.

Because of the haphazard way that Viacom proceeded, there is certain to be litigation arising from this event. The Electronic Frontier Foundation is already looking into the wrongful takedown notices that resulted in a large number of non-infringing videos to be removed. It may also motivate YouTube to file suit.
But the best result for consumers would be for this incident and its fallout to get the attention of Congress, that needs to take a long, hard look at the DMCA. Congress needs to put some teeth into the law to deal with the increasing misuse of the law for political and other reasons only tangentially related to the protection of copyright. Remember Diebold’s using the DMCA to prevent potentially embarrassing documents about its electronic voting machines from being posted online?
Allowing companies like YouTube to recover significant damages for wrongful takedown notices would send an important message to copyright owners who are abusing the DMCA. But even better would be if Congress gave users a useful cause of action, with a real possibility of recovering significant damages (and possibly punitive damage) for DMCA misuse. That would level the playing field, dissuade copyright bullies from abusing the law and hopefully bring some sanity back into the mix.
Is that too much to ask?