Has YOUR Free Speech Been Infringed?

As the law firm for an English soccer league puts it in a letter about their lawsuit against google:

YouTube class action lawsuit: Has YOUR copyright been infringed?, by Donna Bogatin, Digital Markets, zdnet blogs, May 5th, 2007

Well, I write books, so I should be concerned about copyright.

What else do they say?

The Defendants (Google, YouTube) have willfully violated the intellectual property rights that were created and made valuable by the investment – sometimes the life-long investment – of creativity, time, talent, energy, and resources of content producers other than the Defendants. The complaint asserts several legal claims against the Defendants, including direct copyright infringement, contributory copyright infringement, and vicarious copyright infringement.
Well, who could argue with that?

Wendy Selzer, for one:

I snipped the copyright warning out of the weekend’s Super Bowl broadcast as an example for my copyright class of how far copyright claimants exaggerate their rights.
This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or of any pictures, descriptions, or accounts of the game without the NFL’s consent, is prohibited.
Let’s see whether the video, clear fair use, gets flagged by a copyright bot.

Update: My First DMCA Takedown, a mere 5 days later.

My First YouTube: Super Bowl Highlights or Lowlights, by Wendy Selzer, wendy.selzer.org, 8 Feb 2007

She responded to the DMCA takedown letter with a counter letter, and you’ll notice the clip is still up on YouTube.

The point here is that DMCA isn’t just being used to protect “the investment”. It’s being used indiscriminately to stop fair use, as well.

What’s this got to do with net neutrality? Well, for example, Jon Stewart’s explanation of Senator Ted Stevens’ “series of tubes” explanation of the Internet used to be on YouTube, but now all you get is:

This video is no longer available due to a copyright claim by Comedy Central
Comedy Central has apparently taken down all of their material from YouTube.

I did find a few brief clips on YouTube of Stewart on The Daily Show, such as this one of Jon Stewart on Crossfire.

CNN’s Crossfire showed a few clips of The Daily Show as part of Stewart’s appearance on their show. I guess Comedy Central couldn’t convince CNN to take down those clips. Or maybe CNN is a big enough company to rate fair use. So you can see Jon Stewart on YouTube on The O’Reilly Factor, the Larry King Show, Letterman, Charlie Rose, at the Emmys, at the Oscars, etc., but you can’t see him on YouTube on his own show.

This is because Viacom, which owns Comedy Central, is suing YouTube and its owner, google.

The lawsuit is the latest – but by no means the last – reminder that the freewheeling, “everything’s accessible” concept of the Internet sometimes collides head-on with copyright laws that protect the products of creative minds. The eventual outcome will build on previous cases to help define the circumstances when works can and cannot be freely traded on the Internet. And it also shows just how difficult it is to regulate copyright restriction in the Internet era.

This battle features no minor players. Viacom owns an array of TV networks and production companies, including MTV, Nick at Nite, TV Land, BET, Paramount Pictures and Dream Works. It formerly owned CBS.

YouTube and the LAW, Court case reflects conflict between Internet freedom, copyright law, By Tracy Warner, Fort Wayne Journal Gazette, 8 Apr 2007

Protection of investment in intellectual property is of course a legitimate point. And Viacom’s suit alleges that YouTube selectively filters
“[b]y limiting copyright protectiong to business partners who have agreed to grant it licenses,”

Viacom Files Copyright Infringement Lawsuit Against YouTube and Google Over Unauthorized Use Of The Company’s Shows, Viacom International, Inc. v. YouTube, Inc., YouTube, LLC, and Google, Inc., findlaw.com, March 13, 2007

If that’s true, it could be a problem.

But protection of intellectual property isn’t the only valid point. So is fair use for educational and political use. And so is the question of who is supposed to be policing this stuff: ISPs? Law firms for content distributors? The actual producers of the content?

Not to mention that by decreasing exposure of their programs on the Internet, Viacom may be turning down many millions of dollars worth of free advertising. Stewart seems to think that YouTube is good advertisement for his show.

But to me, the situation is that there’s a ton to gain for both companies. Viacom, they put their content on YouTube, it gets exposure, people know about their programming… it’s a win for everybody in this situation.

The Daily Show On Parent Company Viacom’s Lawsuit Against YouTube… On YouTube, by Mike Masnick, 23 March 2007

Interestingly, the clip techdirt links to of Stewart discussing the case on The Daily Show used to be available from Comedy Central as well as YouTube, but now is unavailable from both.

Does this mean Viacom is saying Comedy Central doesn’t have permission to put up clips of its own shows, or is there something about the content of this particular clip that’s relevant?

Meanwhile, google has responded to the lawsuit in a letter to the U.S. District Court of Southern New York, saying google is already doing everything required by the DMCA, and demanding a jury trial, saying that

By seeking to make carriers and hosting providers liable for Internet communications, Viacom’s complaint threatens the way hundreds of millions of people legitimately exchange information, news, entertainment and political and artistic expression.
If the rumors are true that one of the main reasons google bought YouTube was so google could use its rather large financial resources to defend cases like this, we should expect to see both sides continue to fight this case out in both the formal courts and the court of public opinion. The soccer league lawsuit further ups the ante from a jury trial to a class action case, and from a more or less domestic U.S. issue to an international one.

The results of these lawsuits will have implications for net neutrality and freedom of speech, since the issues involved include what is fair use and who can use the Internet to distribute what. Copyright is one of the main weapons of the regulatorium these days. Copyright is being used to try to wipe out Internet radio in support of the fat head, despite the long tail. The centralized model of the fat head is what some of the major content providers and the big telcos and cablecos support, while the long tail of participation is largely what the Internet is about. Which do we want? Content provided by a few big centralized content providers? Or participation from as many sources as we care to absorb? And which is better for the functioning of democracy?

Remember that net neutrality isn’t just about bits and bytes; it’s also about much larger political and social issues.