off my chest

Disclaimer: I’m Mike Fricklas’ brother. Nothing of what I say comes from him, however.

My assumption about the purpose of the op-ed, and for that matter, the law suit: This lawsuit isn’t about trying to get $1B (or for that matter $1) out of Google – Viacom has less risky ways of trying to make money than high-dollar lawsuits against other mega-glomerates. What this suit is about is refining the DMCA or introducing new legislation to specifically address fair use in the case of copyrighted works, posted in significant part or in their entirety, without the consent of the copyright holder. This obviously has ramifications for the copyright holder, as well as the sites that contain the content. Without an express definition of fair use, there is little difference between downloading the latest episode of The Daily Show via bittorrent and viewing it online at YouTube — in fact, it’s much easier to find and view on YouTube due to the various ways in which content is indexed and crossreferenced.

The world seems to have defined fair use in sound clips as 30-second segments used in context of providing the copyright information in situ. It has long defined fair use on copyrighted print materials in well-defined ways. Use of video content without copyright holder agreement, knowledge, or attribution isn’t the same thing… especially when the video content is used in a way that is specifically designed to make money.

Another argument is that YouTube only provides an “index” to content, similar to google or The Wayback Machine’s archived content of the web. This isn’t the same thing again, since web based content can be prevented from search engine indexing easily by the copyright holder, by putting metatags on the sites (to request non-indexing). On a search engin, the siteis used as a pointer to its original context – the original site still gets hit. However, YouTube is designed to keep viewers _on_ YouTube, so viewers will implicitly authorize ad placement and support it’s revenue model. Archive.org is very explicit about authorization to hold copyright material (e.g. live music archive) before posting material — YouTube doesn’t check with copyright holders in any way (or attempt to research them, which admittedly would be an onerous task given the quantity and flow of the material).

Hopefully this case will rigidly define (or at least better define) where the line is between fair use and free use.

This entry was posted on Tuesday, March 27th, 2007 at 10:36 am and is filed under . You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.