This is technically illegal, but somehow I doubt Jon Stewart minds…
Get it now before Viacom submits its take-down notice.
Copyright 
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.
Michael Arrington has a write-up at TechCrunch about the unamed News Corp./NBC Universal joint venture set to launch later this year as a competitor to YouTube.
Arrington’s key points come from an announcement call he listened in on:
The two key messages Chernin and Zucker were selling were (1) a focus on respecting copyright, and (2) the fact that they were creating what they called “the largest advertising platform on earth.” That may be good messaging to stockholders, but it isn’t what the public cares about.
Working name, given by Google: “Clown Co.” Let’s see if they can escape it when they actually come up with a brand and a product.
I usually agree with Larry Lessig about copyright issues, but I found his op-ed on Grokster and Viacom to be rather off. I’ve been meaning to do a post about that, but Randy Picker has made the point better than I could:
[The Sony] case addresses two issues, whether home users engaged in fair use when they time-shifted free over-the-air broadcast television—the Court concluded that they did—and whether Sony could be held secondarily liable for copying done with the VCR. Just reading statutes, we might have thought the answer to that question was easy. As the majority opinion noted, the Patent Act expressly addressed secondary liability, setting forth in 35 USC 271(b) liability for one who “actively induces infringement of a patent” and in 35 USC 271(c) liability for contributory infringement. Congress obviously knew how to create secondary liability in intellectual property cases when it wanted to, and therefore chose not to do so in copyright when it failed to include comparable language to that of the 1952 patent act in the 1976 copyright statute. Case closed.
Paul Kapustka over at GigaOM has a piece about how Rick Whitt, Google’s new “Washington Telecom and Media Counsel,” attempted to tone down the fears — stoked recently by Google Senior Policy Council Andrew McLaughlin — that the Internet giant was going soft on Net Neutrality.
For a lawyer-in-training, watching the commenters on Slashdot, Digg, and similar techie forums debate fine points of law is a special treat–finally, a group that knows less about that law than I do. Faster than you can type “IANAL,” some dope has posted that the income tax is unconstitutional, that breaking into government computers cannot be lawfully prosecuted, or that one has a good case against Comcast when the cable installer came a day late.
Non-lawyers often treat the law as intuitive; does it seem like this is illegal or improper?, they ask. The answer, of course, frequently justifies their own behavior.
Thus I learned from Digg today that “Downloading Pirated Anything Is NOT Illegal.”
WASHINGTON, March 13, 2007 – The Electronic Frontier Foundation on Tuesday released a paper about the entertainment industry’s move to take copyright controls global.
The report is the result of EFF’s participation in a closed-door session of the Digital Video Broadcasting Project (DVB), the predominant global standard for digital television. (America uses a different digital standard that supports high-definition.)
EFF’s report documents the extent to which the DVB consortium has signaled its assent to copyright control technology. EFF called these a series of “unparalleled restrictions” on consumers’ rights to enjoy lawful digital content. These include “enforcing severe home recording and copying limitation,” “imposing controls on where you watch a program” and “dictating how you get to share shows with your own family,” according to EFF.
My friend Seba, who DJs around here in D.C. from time to time, had some interesting insights on the music scene, and the relationship between copyright and new music, which I brought up in my recent “Amen Brother” post:
You know, I was thinking more about this and I’m not sure it’s totally correct to say the current legal framework for IP as it applies to sampling stifles creativity. I am in total agreement that it’s overly restrictive . . . and, as that YouTube vid pointed out, it’s kind of ass-backwards: How does a series of seminal beats that were so widely sampled — and thus arguably in the public domain — become the intellectual property of a company that creates beats for musicians to use in new works?
What I want to say is that this legal framework creates a barrier, but not at the level of creativity. Rather, the barrier exists at the level of commercial release. Here’s an example:
There’s a whole genre of libertarian thought about things that can and can’t be property. Other people, for example.
Then we get to intellectual property arguments. Can ideas and images be property? Some say no, because it amounts to making a claim on a thought in someone else’s head. I don’t see why not, so long as the right is defined in such a way that one stays out of other’s heads, and focuses on their behavior (making copies for example).
Against Monopoly points to a YouTube video tracking some history of the “Amen Brother” beat and sampling generally.
The video reminded me again of the upwelling of creativity that occured in the late 80’s before sampling came on the the radar screen of copyright holders.
“Amen Brother” is important, of course, but there are many other beats that contend for top honors. I went looking for James Brown’s “Funky Drummer” beat and came across this list of beats, calling itself “The 30 Greatest Hip Hop Drum Breaks & Samples of All Time.” Well, I’m not so sure, if it doesn’t have Funky Drummer, but listening to the beats connotes the dozens of songs that succeeded them. It’s an exciting window into our culture.
Finally, after much searching, I came across the Funky Drummer beat on this list. Enjoy.
The point? Creative works are not just outputs of creative people – they’re also very much inputs to new creative works, a point made well by Greg Lastowka and Dan Hunter in their Cato Policy Analysis Amateur-to-Amateur: The Rise of a New Creative Culture.
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