When “Reasonable” Isn’t

by on March 23, 2007 · 12 comments

Doug Lay wants to know what I think of Doug Lichtman’s op-ed on the Viacom/YouTube suit, which he says “comes close to defining a new category of thoughtcrime.” I don’t think I agree with that characterization, but I do have a couple of bones to pick with Lichtman’s argument.

The first is that Lichtman entirely brushes aside what I consider Google’s strongest argument:

Lawyers on both sides will cite the Digital Millennium Copyright Act and argue about the extent to which its provisions provide a “safe harbor” for YouTube’s service. They will parse copyright case law and debate such legal doctrines as “contributory infringement” and the defense of “fair use.” Before the forest becomes lost in those trees, however, it’s important to make three basic points.

He then goes on to talk about how copyright ought to work, and why YouTube ought to be liable for infringement. But deciding those sorts of policy questions is the job of Congress, not the courts. It’s fine (indeed, beneficial) for the courts to fill in the gaps in statutes where Congress has been unclear or unspecific. But when a statute is clear, the job of the courts is to apply it as written, not to second-guess Congress’s policy judgments.


Yet that appears to be what Lichtman is doing here. The DMCA is pretty clear: service providers shall not be liable “for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” Now there are several exceptions that might be relevant: the ISP can’t be aware that the infringement has occurred, it can’t receive a financial benefit from the infringement, and it must follow the notice-and-takedown procedures enumerated by the courts. One can make a plausible argument that YouTube flunks one or more of these caveats. But Lichtman doesn’t do that. Rather, he suggests that service providers ought to be held liable if they fail to take reasonable steps to deter copyright infringement on their networks. This, it seems to me, is precisely the position that Congress rejected when it enacted section 512 of the DMCA, precisely because ISPs were worried about being forced to monitor their customers’ private communications in order to stop copyright infringement. Lichtman is certainly entitled to disagree with that policy judgment, but he should be making his case to Congress, not the courts.

As for the merits of Lichtman’s policy arguments, I’m probably more sympathetic to them than Doug Lay is, but I’m still skeptical. The fact that “Providers of a new technology will often be tempted to attract a customer base by allowing copyright infringement” is not a new point. In fact, it was central to Hollywood’s argument in Sony. In that case, let’s remember, it was conceded that a significant number of customers would use their VCRs to infringe copyrights by building tape libraries. Sony surely profited from those customers just as YouTube has profited from Daily Show clips. But I think it’s a large and problematic leap to conclude that “the law must demand reasonable precautions both at the design and operational stages of a technology.” “Reasonable” is in the eye of the beholder, and I see no way of formulating such a standard without giving copyright holders nearly unlimited license to harass the developers of new technologies.

We have to keep in mind that if we want the copyright system to be hospitable to innovation, it’s not sufficient that innovators win their lawsuits. The law needs to be clear and unambiguous enough that most legitimate innovators are never sued at all, or at a minimum win their lawsuits quickly and decisively. A complex legal battle that drags out over many years can be a death sentence for a new technology that’s already struggling to achieve critical mass.

One virtue of the court’s holding in Grokster is that it relied on evidence that Grokster had taken explicit actions to encourage infringing activities. This gives innovators a (reasonably) straightforward way to stay on the right side of the law: don’t explicitly promote the use of your technology for copyright infringement. In contrast, I see no way to codify Lichtman’s “reasonable precautions” standard in a way that would give innovators reasonable assurances that they won’t run afoul of copyright law.

  • Doug Lay

    Thanks for the response, Tim.

  • http://www.pff.org Noel Le

    ***The law needs to be clear and unambiguous enough that most legitimate innovators are never sued at all, or at a minimum win their lawsuits quickly and decisively.***

    You seem to waver between equating flexibility in copyright policy with: 1) lack of bright lines stifling personal and creative freedom and 2) the adaptiveness with which courts can apply copyright doctrine. An example of 1 is your DMCA paper, an example of 2 is your recent post on Prof Picker

  • http://www.techliberation.com/ Tim Lee

    Noel, I’m not “wavering,” I’m making two distinct, and mutually reinforcing points.

    The first point is that increasing the ambiguity of the law is a bad thing regardless of whether it’s done by the courts or by Congress. The second point is that the courts generally have a better track record of adjusting copyright law to deal with changing technologies in a way that’s non-disruptive–that is in a way that doesn’t introduce fresh ambiguities into the law.

    I make both of these points in my DMCA paper, because I think they’re both true.

  • Doug Lay

    Thanks for the response, Tim.

  • http://www.pff.org Noel Le

    ***The law needs to be clear and unambiguous enough that most legitimate innovators are never sued at all, or at a minimum win their lawsuits quickly and decisively.***

    You seem to waver between equating flexibility in copyright policy with: 1) lack of bright lines stifling personal and creative freedom and 2) the adaptiveness with which courts can apply copyright doctrine. An example of 1 is your DMCA paper, an example of 2 is your recent post on Prof Picker

  • http://www.techliberation.com/ Tim Lee

    Noel, I’m not “wavering,” I’m making two distinct, and mutually reinforcing points.

    The first point is that increasing the ambiguity of the law is a bad thing regardless of whether it’s done by the courts or by Congress. The second point is that the courts generally have a better track record of adjusting copyright law to deal with changing technologies in a way that’s non-disruptive–that is in a way that doesn’t introduce fresh ambiguities into the law.

    I make both of these points in my DMCA paper, because I think they’re both true.

  • http://weblog.ipcentral.info/ Noel Le

    Well, you state the issue well here, but in your DMCA paper did not follow through with illustrating it in the case analysis. You did not mention several DMCA cases where courts have limited application of the anti-circumvention provision. You reviewed only a limited set of DMCA cases as if they were the sole interpretation of 1201- a puzzling maneuver since there are few DMCA 1201 cases to being with. The implication on your analysis was that your argument did not fully present how courts have not always weighed down negatively on reverse engineering activity; a concept that contradicts your conclusion.

  • http://weblog.ipcentral.info/ Noel Le

    Well, you state the issue well here, but in your DMCA paper did not follow through with illustrating it in the case analysis. You did not mention several DMCA cases where courts have limited application of the anti-circumvention provision. You reviewed only a limited set of DMCA cases as if they were the sole interpretation of 1201- a puzzling maneuver since there are few DMCA 1201 cases to being with. The implication on your analysis was that your argument did not fully present how courts have not always weighed down negatively on reverse engineering activity; a concept that contradicts your conclusion.

  • Doug Lay

    Noel, your nagging is quite tiresome and irrelevant. Cases like the Lexmark case may have rejected an expansive reading of the DMCA anti-circumvention clause in the end, but the more salient point – which Tim has been consistent about in everything I’ve read by him – is that these cases should never have been brought at all. They chill competition and tilt the balance of market power away from disruptive upstarts and toward incumbents.

    The DMCA anti-circumvention provision is protectionist, anti-consumer, and anti-innovation (really, the second two claims flow almost inexorably from the first). It should be repealed as soon as possible.

  • Doug Lay

    Noel, your nagging is quite tiresome and irrelevant. Cases like the Lexmark case may have rejected an expansive reading of the DMCA anti-circumvention clause in the end, but the more salient point – which Tim has been consistent about in everything I’ve read by him – is that these cases should never have been brought at all. They chill competition and tilt the balance of market power away from disruptive upstarts and toward incumbents.

    The DMCA anti-circumvention provision is protectionist, anti-consumer, and anti-innovation (really, the second two claims flow almost inexorably from the first). It should be repealed as soon as possible.

  • http://weblog.ipcentral.info/ Noel Le

    Doug, you rightfully call out that Tim’s main criticism of the DMCA is that it exist in the first place, thus he does not place that much importance on actually looking carefully into the cases.

    Granted, I believe the anticircumvention provision and its exception should be clarified, but right now it appears that will only happen through the courts. Based on Tim’s perspective, he would oppose improving the DMCA, since he doesn’t think such cases should be brought in the first place.

  • http://weblog.ipcentral.info/ Noel Le

    Doug, you rightfully call out that Tim’s main criticism of the DMCA is that it exist in the first place, thus he does not place that much importance on actually looking carefully into the cases.

    Granted, I believe the anticircumvention provision and its exception should be clarified, but right now it appears that will only happen through the courts. Based on Tim’s perspective, he would oppose improving the DMCA, since he doesn’t think such cases should be brought in the first place.

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