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.