Simply put, Professor Lessig’s recent post on Viacom v. YouTube is, at best, misleading about the case and the DMCA. This is really no surprise because as long as he can convince the masses that the DMCA is ruining their lives- even as they are busy accessing the Internet from their phones and scouring the online world for all forms of entertainment or educational material ever created by using the fastest modems and unbelievable software- then he is relevant to the debate.
Referring to the DMCA, Prof. Lessig states that the “…content industry got Congress to adopt one of the most sweeping changes in American copyright law…” Well, as a former counsel to the House Judiciary Committee during the consideration of the DMCA, I take particular offense to these off-the-cuff remarks about Congress being at the beck and call of the content industry.
So, here goes DMCA haters: the TRUTH is that EVERY group that came to Congress with a valid argument as to why they needed an exemption from the law was (GASP) given one! Oh, but wait, there is more…. In fact, there is one very special ongoing exemption. If YOU can show that you are or are likely to be adversely affected by the DMCA in your ability to make fair use of copyrighted works, then you might get your very own exemption. Whining about not having total interoperability of all media on all devices right this second probably doesn’t cut it.
And, I assure you, the content industry did not roll over and agree to these exemptions without a fight. Professor Lessig knows this- but blogs about long and difficult negotiations resulting in compromise are not terribly interesting.
The good Professor conveniently failed to mention a few other important details. First, the safe harbor provision or Online Copyright Infringement Liability Limitation Act was also a negotiated compromise between all interested parties- a very, very, very long and difficult negotiation I might add. Second, in addition to the “ability to control,” section 512(c) has two other conditions which must be met in order to qualify for the safe harbor. Without commenting on the specifics of the litigation, the “knowledge of the infringing activity” might be important.
Leaving aside the fact that Lessig can’t seem to decide whether the content industry can or can’t get a law from Congress; his criticism of Viacom for using the courts to determine if the copyright laws have been violated is quite disingenuous. Because had the content industry gone to Congress for a change in the law, Prof. Lessig, along with all his cohorts at CEA, Public Knowledge, and EFF would have complained about that too. I can hear it now, "The Content Industry is asking Congress for stronger copyright protection AGAIN!"
The Viacom suit is an example of the system working. The laws have created an environment which fosters innovation and creation. Negotiations on new business models are happening at warp speed. And, when necessary, parties may need to resort to legal action. It’s this process that has given the U.S. a trade surplus in intellectual property with every other country.
Fortunately, this case will be decided on facts, not fiction.