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To anyone involved in the debate over digital copyright these days, the rhetoric sounds ironically like a broken analog record: Piracy bad! Stealing bad! Intellectual property good! Stronger intellectual property? DoublePlusGood! We’re told over and over by the copyright-maximizing pundits that we now live in an online age of unprecedented theft of copyrighted works and that we are somehow wavering on the edge of the end of creativity as we known it unless something is done to stop bad things (read: downloading) from happening to good people (read: copyright owners). The latest reprisal of this meme has emerged in the legal battle between Viacom and YouTube, the video-sharing site owned by Google. Viacom argues that YouTube causes it harm by allowing users to post infringing content, specifically clips of Viacom-owned television shows. YouTube counters that it simply provides hosting services and is therefore protected by the Digital Millennium Copyright Act (DMCA). As long as it takes down videos when Viacom complains, YouTube argues, it can’t be liable for what its users post. So who’s right? The question can be answered in two parts: what the law says and why the law says it. Let’s start with what the law says. Douglas Lichtman, with whom I’m sharing these pages, argues that the DMCA shouldn’t protect YouTube because the site does more than passively store videos; it also plays them back. Yet the word “passive” does not appear in the text of the relevant DMCA section. Nor does the statute make any distinction between services that solely store videos and those that allow both storage and retrieval of items. (In fact, one might wonder who would bother to use a service that did not allow retrieval, if one even exists). Thus, while Doug would like to use these concepts to distinguish passive Web site hosts from YouTube, the actual text of the statute doesn’t really help him. Nor does the policy behind the statute. When Congress passed the DMCA, it created safe harbors in order to allow online intermediaries and service providers the ability to stay neutral when it came to copyright law battles between content owners and users. The system works pretty simply: A content owner issues a DMCA notice and the provider takes down the content. If the user counter-notifies the provider that the notice was incorrect and the owner fails to sue the user within two weeks, the content goes back up. No matter what happens after that, the provider is off the hook. Pro-content folks feel this system is unfair because they want providers to take a side � their side. But the system makes a lot of sense given the architecture of the Internet and the policy in favor of provider neutrality and online freedom. Consider the architecture of the Internet. While we often refer to it in the singular, the Internet is actually a vast array of millions of computers, all linked together but without any central brain to speak of. In other words, it is not some kind of top-down hierarchy in which Internet service providers and entities like Google have absolute control over every bit and byte that flows through the system. Nor would we want it to be. Think about the problems we have today from a free-speech perspective with top-down media channels like broadcast television and the rest of mainstream media. Think about the problems we have with entities like the FCC, who control and regulate our spectrum without real accountability. Think about the recent debates over network neutrality and the importance of allowing the free flow of online information. All of the freedoms we enjoy on the Internet in terms of diversity, autonomy, independence and free speech are premised on the idea that our actions and publications are not controlled and subject to pre-approval by major corporations, governments and providers. The fact that I can post any message to my blog, send any email I want or upload any video to YouTube without anyone’s permission is an essential part of Internet freedom. Yet this is exactly what Viacom wants to take away from YouTube and by proxy, the Internet. Under their rules, YouTube will be legally required to control and pre-approve all content before it goes live on the Internet. User freedom will be lost and we will be right back where we started with a small selection of companies deciding what we can and cannot watch. This doesn’t mean online copyright infringement isn’t a problem. Every time people are given freedom, some of them will abuse it. The remedy, however, is not to take away everyone’s freedom and give power and control over our actions and free speech rights to others, especially corporations who provide no public say in their policies. That subjects our voice to their whims and biases, not to mention their economic and political interests. Instead, we must uphold the principles that made the Internet what it is today � the freedom to communicate and share information directly between individuals at low cost, without approval, censorship or prejudice. So what should Viacom do, if not sue? For one, they can continue to send DMCA takedown notices for infringing content. While this may not be as exciting � or as headline-grabbing � as a lawsuit, it has proven to be an effective means of taking down content and keeping it offline. If you don’t believe me, just try to find a “Daily Show” or “Colbert Report” clip on YouTube these days. Second, Viacom could sit down at the bargaining table with YouTube and negotiate a licensing deal that benefits both parties and not just the content owners. For example, they could strike a deal that inserts advertisements on the video pages where users upload Viacom content. This arrangement would actually pay the artists who help create the content and reduce enforcement costs. Such an approach would also allow YouTube and its users to continue posting without approval and still provide compensation to artists and some degree of control over the use of their content. It’s not a perfect solution but it is a far better one than taking freedom away from the Internet’s users. It’s easy to characterize the Viacom v. YouTube battle in black-and-white terms: good v. evil, copyright creators v. copyright infringers. But the truth is vastly more complicated and the quest for balance must include far more than just the interests of the copyright owners. The battle over YouTube is not just a battle over copyright. Rather, it is a battle over control of content distribution on the Internet. Before choosing sides, make sure you’ve decided which online world you want to live in. Jason Schultz is a staff attorney at the Electronic Frontier Foundation in San Francisco.

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