Backwards Reasoning on Copyright Law

John Batelle has a great interview with EFF’s Fred Von Lohmann, where he discusses the legal implications of Google’s YouTube acquisition:

YouTube has already been sued (by LA New Service), so Google is essentially buying that lawsuit. But I don’t think that’s a problem–frankly, precedent set against YouTube will likely exert strong influence over the entire video hosting industry. So, in essence, Google is just getting more direct control over a lawsuit that is important for its existing and future business. And when it comes to lawsuits, Google has top-drawer talent (both in-house and in outside law firms), strategic vision, and a stellar track record. Google’s executives (like AOL’s and Yahoo’s before them) understand that shaping the legal precedents is a critical part of their business.

And it’s important to consider who are the people suing YouTube. I’ve thought for some time that the first lawsuits against YouTube (and other video hosting services) will be from small copyright owners (like LA News Service), not from major media companies. That’s good news for YouTube (and Google). Small timers tend to lack the resources to bring top-drawer legal talent to bear in these fights. As a result, they often lose, creating useful precedents for the Google’s of the world. In fact, Google has already been successful in securing good precedents against unsophisticated opponents who thought that they could squeeze a quick settlement out of Google (Field v. Google, Parker v. Google). What the small-timers don’t appreciate is that Google would much rather spend money on setting a good precedent than on settling.

I think there’s another factor that’s likely to lessen the legal peril for Google: a judge may perceive Google as too big and important to fail.

As much as we legal nerds like to debate the minutia of copyright law, the reality is that there’s a lot of wiggle room in the law, and on the margins, the judge’s perception of the defendant will be important. If a judge sees a company as arrogant kids who are flouting the nation’s copyright system, his knee-jerk reaction is going to be to rule against them. On the other hand, if they see the defendant as a good corporate citizen on the cutting edge of technological progress, they’re going to have the opposite reaction.

Indeed, we saw precisely this kind of backwards reasoning in the oral arguments for the Grokster decision. One of the questions that the Supreme Court justices repeatedly asked the recording industry was: how do we know that the standard you’re offering wouldn’t have stopped the invention of the iPod? The industry lawyers fell over each other assuring the justices that of course the iPod would be legal under their theory. This was disingenuous, given that the industry had done their best to sue the first MP3 players out of business. But by 2005, iPods were sufficiently part of mainstream culture that it was considered self-evidently absurd that they’d be illegal.

Having YouTube owned by Google may strengthen the same presumption that any copyright theory that says YouTube is illegal must be wrong. Obviously, that’s not the
way the law is supposed to work, but I suspect such considerations can have a significant effect.

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