Copyright

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.

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Mike Masnick notes another data point in the great King Kong debate. George Lucas thinks that the era of the $200 million blockbuster is over.

Spending $100 million on production costs and another $100 million on P&A makes no sense, he said.

“For that same $200 million, I can make 50-60 two-hour movies. That’s 120 hours as opposed to two hours. In the future market, that’s where it’s going to land, because it’s going to be all pay-per-view and downloadable.

“You’ve got to really have a brand. You’ve got to have a site that has enough material on it to attract people.”

…Lucas said he believes Americans are abandoning the moviegoing habit for good.

“I don’t think anything’s going to be a habit anymore. I think people are going to be drawn to a certain medium in their leisure time and they’re going to do it because there is a desire to do it at that particular moment in time. Everything is going to be a matter of choice. I think that’s going to be a huge revolution in the industry.”

I’m very reluctant to argue with the man who created three of the top 10 grossing films of all time, but this doesn’t seem quite right. People have been predicting the decline of the movie theater for decades, first in response to the television, and then in response to the VCR. It hasn’t happened yet. The reason, I think, is not only that the big screen makes for a better experience, but also that people like to go out, and seeing a movie is a good excuse for doing that. It’s the same reason that people go to bars when they could buy alcohol and consume it at home for a lot less money. As long as there are thousands of movie theaters, it seems to be there will be demand for big-budget blockbusters to draw people into them.

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Dating a girl who reads Glamour has many advantages. One is that she always looks cute at parties. More importantly, though, she helps me keep abreast of the latest developments in the copyright debate. For example, she pointed out to me that the September issue has a pro-and-con feature on creating a new copyright for clothing design. The pro-copyright lady complains that “after a runway show, your designs are out immediately on the Internet and can be copied overnight. That means far more manufacturers can make a knockoff of your piece before your original has even gotten into the stores!”

The anti-copyright guy points out that once a fashion copyright was on the books, it would be almost impossible to determine which dresses are copying which other dresses. He points out that retro fashion has become quite common. Today’s hot styles are often imitations of styles from decades earlier. It would radically change the fashion industry if one company held the copyright to a particular style and was able to exclude others from imitating it.

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Techdirt notes that peer-to-peer network Limewire is returning fire in its battle with the RIAA:

Last month, the RIAA sued Limewire after Limewire wouldn’t agree to simply roll over and pretend the RIAA’s interpretation of the Supreme Court decision in the Grokster case was actually what the Supreme Court said. The court actually said that services could be found liable, if they were shown to actively induce infringement. The RIAA and the MPAA pretended this meant that any file sharing network that had unauthorized content was flat-out illegal. Of course, that’s a bit of a stretch. So, it already seemed like it would be an interesting case, but now Limewire has hit back even harder with counterclaims accusing the RIAA of antitrust violations, consumer fraud and other misconduct. Specifically, they seem to be making the case that the RIAA only wants to shut down Limewire because it is a competitive distribution mechanism that they cannot control, which helps compete with their monopolistic control on traditional distribution. It’s an interesting claim that does make some sense, though the RIAA will simply try to paint Limewire as a tool for “thieves.” As with many of these types of cases, there’s probably a decent chance that the sides will settle before any decision is made, but in this case, it would be very interesting to see the actual outcome of any lawsuit–both on the issue of whether or not simply running a file sharing network is inducement and on whether or not there really is an antitrust claim here. If the case does go forward and the RIAA loses on the antitrust issue, it could have a big impact on the traditional labels, and could actually be a catalyst towards forcing them to accept the changing nature of the market. This is becoming a case well worth watching.

Limewire’s point about the Grokster is an important one. The Supreme Court did not rule that peer-to-peer file sharing is illegal per se. What they said was that there was ample evidence (from advertisements, internal company emails, etc) that Grokster intended to make a business of copyright infringement, and so the courts didn’t have to reach the question of whether running a peer-to-peer network, as such, constitutes secondary copyright infringement. Frankly, I think Limewire probably still deserves to lose, but they should at least have the opportunity to persuade the judge that unlike Grokster they legitimately expect to make money through more legitimate channels.

I don’t find the antitrust angle very compelling. There are lots of alternative music distribution services that aren’t being sued. eMusic and MySpace come to mind. Those services have been making a good-faith effort not to facilitate piracy, and as a result the RIAA has left them alone. If Limewire is guilty of secondary copyright infringement, then it certainly shouldn’t trigger antitrust scrutiny for the RIAA to enforce its members’ rights under the law.

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Techdirt highlights an incredibly wrongheaded decision that was handed down this week by the Belgian courts:

In the ongoing case where a bunch of newspaper publishers are trying to force Google to pay them to index them and send them traffic (a move that has search engine optimizers worldwide wondering what they could possibly be thinking), Google appealed both parts of the ruling. The bigger issue (the indexing and showing links to Belgian certain news sources) will be heard on appeal in November. However, on the issue of forcing Google to place the entire text of the legal order on the front of both google.be and news.google.be, the Belgian courts have turned down Google’s appeal, and said they will start fining the company if it does not place the entire text (with no commentary, either) on both websites. This seems drastic and entirely unnecessary for a variety of reasons. All it really seems to do is broadcast the backwardness with which Belgian news publishers view the internet. It makes you wonder… do Belgian publishers require libraries to pay them extra money to list their books in a card catalog? What this really highlights, however, is that there are still plenty of industries out there that don’t necessarily understand how the internet works–and that can cause all sorts of problems for internet companies who assume most people understand when things are being done for their benefit.

The legal issues here are pretty well settled on this side of the Atlantic. Deep linking has been repeatedly upheld by American courts, and site administrators have several ways to remove their site from Google’s index and cache on request. The issue here is really about what the default should be: does Google have to get sites to opt-in to search engines, or do the sites have to opt out. If the courts were to uphold the former position, it would have a devastating impact on the search engine industry, because the logistics of getting opt-in permission from millions of individual site owners would likely be beyond the resources of all but the largest companies. If you want a stagnant search engine industry dominated by Microsoft, Google, and Yahoo, just set up copyright hurdles that will make it virtually impossible for new firms to enter the market.

Update: It’s been pointed out to me that I should make clear the distinction between law and policy here. I have no idea if the case was correctly decided as a matter of Belgian law, about which I know nothing. It’s quite possible that the Belgian courts decided this case correctly based on the laws on the books in Belgium. My point was simply that this decision is likely to have bad policy outcomes. I should have that more clear.

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