A really superb article has just been released in the American Bar Association Journal called “Copyright in the Age of YouTube.” Starting from the story of the dancing baby, whose 30-second home movie was the subject of a DMCA takedown notice for allegedly infringing copyright (a story I have written about before), this article does a really nice job of outlining the current issues about how copyright law addresses, or fails to address, the explosive growth of user generated content on the Internet.
Steven Seidenberg, who is described as a lawyer and freelance journalist, has done an enviable job of describing complex issues in a readable and even enjoyable way. I recommend the article for anyone interested in how the law struggles to keep up with rapid and dramatic changes in technology. The analogy between trying to police user generated content and playing “whac-a-mole” is just right. But apart from its general quality and usefulness, there are two points made in this article that I want to highlight.
First, it is fascinating to see the suggestion made by Seidenberg that the Digital Millennium Copyright Act, which was passed in 1998 and took effect in 200, may already be out-of-date. I have often remarked about the difficulty of applying a copyright law written for the photocopier to the Internet age; Seidenberg goes a step further by noting that even the DMCA was written for a simpler set of Internet technologies — bulletin boards and Usenet groups — and may not be able to account for the huge popularity of user generated content that is now born on the Internet. Seidenberg’s neat summary and comparison of two court cases dealing with UGC — the as-yet-undecided case of Viacom v. YouTube and a less well-publicized decision involving Veoh Networks — explains the interplay of laws and the uncertainty of results in this environment.
The second point that seems significant to me is the complaint sometimes heard about the DMCA and the ruling in the dancing baby case that it has created too great a burden on the content companies for them to have to evaluate the possibility of fair use before they send a takedown notice. Although I understand the argument that a business needs to streamline those processes that merely protect profits and do not generate them, it is hard to be too sympathetic when, in the higher education environment, we are called on to make many decisions about fair use every day, usually without recourse to a stable of lawyers. The law of fair use is intentionally, and I think correctly, open-ended and flexible; it does not lend itself to streamlined or automated processes precisely so that it can remain useful as new innovations and technologies come along. The burden of having to make individual fair use decisions is shared by users and content creators alike; it may not be efficient, but in the end the social benefit of doing things this way clearly outweigh the costs.
The last part of Seidenberg’s article addresses this general point as it discusses attempts to convince Congress to shift more of the burden for copyright enforcement off of the big content companies. If they have not yet been successful in getting courts to force Internet providers like YouTube to police copyright for them, legislative efforts like the PRO-IP act to get the government more involved protecting these private rights have born more fruit. Whether taxpayer-funded enforcement of private copyrights will ultimately squelch the growth of user generated content is an open question, and it is one that may play a huge role in defining the future for creativity and innovation.