Viacom’s appeal of the district court’s decision in Viacom v. YouTube is well underway, and now the amicus briefs supporting Viacom have been filed as well. The arguments in Viacom’s opening brief largely rehash many of the same arguments Viacom madeunsuccessfullythe first time around: Generalized awareness of some infringing content, and failure to take down such unidentified content, disqualifies a service provider from the DMCA’s safe harbors; YouTube’s compliance with the DMCA proves its DMCA-disqualifying ability to control the infringing activity on its network; DMCA protection for YouTube’s “storage” of uploaded content does not include the display of the content on the site; and so on.
Amici chime in with their familiar doomsday refrain. For instance, the American Federation of Musicians’ filing states: "YouTube is more than a widespread infringer of copyrights; it was a catalyst and engine for copyright infringement on a global scale, unleashing a Pandora’s box of illegal activity that will continue to threaten the output of America’s creative industries for years to come." Other briefs make similarly dire predictions.
This kind of language would not have been surprising five years ago. Big media has a long history of knee-jerk opposition to disruptive innovation. But it’s curious that Viacom and its supporters should still be so determined to kill a platform that’s become a revenue source for the media industry. Content owners including Viacom and other amici are making real money from their share of YouTube advertising dollars (which is doubtless one of the reasons Viacom is not seeking redress for activities after mid-2008). YouTube reports that “[h]undreds of partners are making six figures a year.” Media companies use YouTube as well to promote their proprietary content for indirect profit. Importantly, independent artists are also among the content owners who useand indeed, often rely onYouTube for a promotional and financial forum. Were it not for the DMCA safe harbors, this creative and financial engine could not sustain itself.
Let’s be clear: as we’ve previously noted, Viacom and its supporters are seeking a re-write of the DMCA that would put all kinds of online service providers at risk of huge statutory damages for copyright infringement. Is copyright infringement committed on eBay every day by some users? Do people use Microsoft's Bing to find infringing materials? Sure. Obviously these services are also enormously beneficial to businesses and consumers. But they (and many other) online services would not exist without the DMCA safe harbors.
And because they exist, Hollywood and the recording industry have a chance to benefit from new business models they were unable to come up with themselves. Why not embrace them? Because despite decades of evidence to the contrary, big media can’t get over the idea that the only acceptable media innovation environment is one that starts with innovators begging permission from Hollywood.
EFF will be filing our own brief in support of YouTube, and we’re hopeful that, in addition to standing firm on the DMCA, the court of appeals will note YouTube’s growing role in creating revenue opportunities for creators, both big and small.