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Farting in Public: Bad Advice and Google’s Wishful Thinking

March 31, 2007 1 comment

Check out the great user generated content on YouTube: Farting in Public. No wonder they want the Viacom material.

Here’s the strong comeback from Google’s legal team per their letter to the Washington Post:

Viacom’s lawsuit is an attack on the way people communicate on the Web and on the platforms that allow people to make the Internet their own. In the Digital Millennium Copyright Act, Congress struck a careful balance between the rights of the copyright holder and the need to protect the Internet as an innovative communication frontier, not as another venue for litigation.

Content-hosting sites such as YouTube, Craigslist and MySpace that want to take advantage of the DMCA’s safe harbors must promptly remove infringing content if the copyright owner so requests, giving owners a quick remedy that doesn’t require going to court. Copyright owners, in return, have the responsibility to identify infringing material they want removed. Viacom’s lawyers helped craft this law but apparently don’t like it, after all. They want to shirk the responsibility Congress gave them.

Placing that burden on hosting platforms would turn the DMCA on its head.

Viacom is attempting to rewrite established copyright law through a baseless lawsuit. In February, after negotiations broke down, Viacom requested that YouTube take down more than 100,000 videos. We did so immediately, working through a weekend. Viacom later withdrew some of those requests, apparently realizing that those videos were not infringing, after all.

Though Viacom seems unable to determine what constitutes infringing content, its lawyers believe that we should have the responsibility and ability to do it for them. Fortunately, the law is clear, and on our side.

MICHAEL KWUN
Google, Managing Counsel, Litigation

Oh, tell me that you have more than this, please. Tell me you didn’t bring a knife to a gunfight?

So the first thing is the usual call to summon the mob, bring the axe handles and the sheets, fire up the tar for the burning crosses. The thing that the Lessig crowd simply does not (or maybe cannot afford to) understand is that trying to summon the mob against a record company or a television company is still summoning the mob against copyright owners.

Artists are copyright owners. Every artist wants to either keep control over their copyrights or get back that control if they ever gave it up. Artists may choose to give away their works–but THEY choose. When Google attacks one copyright owner and takes away that choice, they attack all copyright owners. And if they can get away with the YouTube fiasco, they can get away with anything.

Google wants to put itself in the same category as MySpace and Craigslist. Myspace I can kind of understand because it looks a tiny bit similar to YouTube (just a tad since they built thier business of the backs of MySpace artists), but Craigslist? Craigslist? Come on.

Calling YouTube a “web hosting” company avoids the central point of the case: How can Google’s interpretation possibly be the law? When I talk to Google fans about this, I find the same departure from reality that I saw during the Napster case and the Grokster case. The central theme of those cases and the Google case are the same. However much the Dedicated Followers of Lessig may have liked Napster, Grokster, Morpheus and now YouTube as tools to destroy the creative community, it all comes down to the same thing. These are copyright infringement engines. It simply cannot be the law that “fair use” covers “sharing” other people’s works–against their will–with millions upon millions of your “closest friends”. And it also cannot be the law or a mature or rational interpretation of the DMCA that copyright owners must spend millions upon millions of dollars watching every online company and sending a continuous stream of takedown notices with NO obligation on the part of the online company to filter or obtain licenses.

Starting with Napster, I watched and listened to highly educated adults buy into what in retrospect for them are really silly arguments that cannot possibly have been true or reasonable. Some of them came to their senses the hard way, and for some in a very hard way indeed.

I can’t help but believe that history will repeat itself yet again. I ask myself what is the common theme through all of these cases? They want our content and they don’t want to pay for it. They think they can just take the fruits of our labors, and make us play “notice and shakedown”. A huge corporation is picking on artists, and thinks that artists are weak. I don’t know how many times they have to fail.

When the dust settles and discovery is complete, I have a feeling that the story that will come out of the emails and statements will be something similar to the story of Grokster. At some point someone sat down with the YouTubes and helped them structure a copyright infringement machine that would appear to fit in the cracks of the Copyright Act enough that they wouldn’t all go to jail if it turned out not to be a defensible fit. I have a pretty good idea of who that someone was, but I will hold my thoughts to myself for the moment.

A friend of mine who is a long time district attorney once said of criminals that if they genuinely seek forgiveness and wish to make contrition, the law should be merciful and accept their bona fides. But–if the criminal does not seek to make amends, then God help them.

Google has a chance now to admit their mistakes. I have seen no evidence that they intend to do so, but if they do, we should welcome them into the creative community as a reliable partner. If they don’t, then we will fight on. I’m reminded of Winston Churchill’s speech to the Canadian Parliament in 1941:

“When I warned [Vichy France] that Britain would fight on alone whatever they did, their generals told their Prime Minister and his divided Cabinet, ‘In three weeks England will have her neck wrung like a chicken.’ Some chicken; some neck.”

I also have to note the faux indignation in the letter to the Washington Post signed by one of Google’s counsel (must not have been important enough for David Drummond, Google’s General Counsel–or is he distancing himself already?): “We did so [took down Viacom's material] immediately, working through a weekend.” Now what on earth possessed the PR hacks at Google that they should hang that comment on poor little Mikey, Boalt Hall class of 98? I’m not going to embarass the young lawyer further by posting the link to his several sophmoric web pages in which he pours his heart out about his law school career, but let me give you a tip, friend: When you get involved in international copyright litigation, time to take that crap down. And be careful what your boss gets you to sign your name to, chump.

But oh, gee, little Mikey had to work through a weekend to stop taking a free ride on other people’s copyrights. Gee, that’s really tough. I have two words for you, dude: Hump gear. When you’ve hauled a trap case up five flights of stairs, or toured in Canada in the snow when all you could see on the road was a little black line of slightly melted ice for a highway, or settled the door with mafia club owners who commenced the discussion by having a couple Bandidos put a sawed off on the table–you’ll understand why we don’t really care if you had to work through the weekend, and more importantly why Google ain’t all that.

Hey Mikey–anyone who is a working musician has had a life of roadblocks, insults, discrimination and people trying to steal from us, and frankly you ain’t no different that guys who steal vans from bands. In fact, you’re worse. You’ve GOT money.

Trust me about one thing–you’re lucky you are not dealing with us on a personal level. When you had your panties in a bunch over the trials and tribulations of being a 1L at Boalt, we were learning to survive in a world you can’t handle. It’s not Boalt, but the brotherhood of the road might learn ya a thing or two about things like right and wrong.

And at the end of the day, that is what this case is about. Right and wrong. Is it right to permit a giant corporation to place extraordinarily unreasonable burdens on every copyright owner, big and small? Is it in keeping with the traditions of democracy that artists of few means should be forced to pursue “notice and shakedown” claims against the Leviathan of Mountain View?

Others are starting to take notice: Hey Mikey! You’re on the cover of Business Week! “Is Google Too Powerful?” How’s that grab you, honey?

So perhaps Google’s arguments will keep them out of jail, at least for copyright infringement. Not so sure about the shareholder suits and the Sarbanes Oxley investigations that are sure to follow a loss on the copyright claims.

There’s a perfect example of filtering out there right now: iTunes. You don’t hear them carping about some extraordinarily tortured interpretation of the Copyright Act.

Hey Mikey! Here’s a filter for you: Get a license.

Maybe you can get one for those attention starved folk who brought you “Farting in Public.”

There he goes again: Lessig’s Denial Knows No Bounds

March 22, 2007 Comments off

Professor Lessig is at it again in a New York Times op-ed, bashing at copyright plaintiffs who take their cases to court in a rather hard to follow line of psuedo-argumentation:

“Drawing upon common law-like power, the court expanded the Copyright Act in the Grokster case to cover a form of liability it had never before recognized in the context of copyright — the wrong of providing technology that induces copyright infringement.”

Gee…let’s paraphrase: “Drawing upon common law-like power, the court expanded the Copyright Act in the [pick your case] to extend the defense of “fair use”, a doctrine it had never before recognized in the context of copyright.”

Or: “Drawing upon common law-like power, the court expanded the Copyright Act in the Betamax case to cover a form of liability it had never before recognized in the context of copyright — the wrong of secondary liability for copyright infringement.”

Oh yes. Grokster was truly a stunning example of law-making courts run amok.

Viacom’s Permanent Injunction: Why we owe Viacom a debt of gratitude

March 19, 2007 1 comment

Press coverage of Viacom’s lawsuit against Google over its YouTube subsidiary tends to focus on the startling $1 billion minimum copyright infringement claim.

The more interesting request of the United States District Court for the Southern District of New York is for “…a declaration that Defendants’ conduct willfully infringes Plaintiffs’ copyrights, [and] a permanent injunction requiring Defendants to employ reasonable methodologies to prevent or limit infringement of Plaintiffs’ copyrights…. (emphasis added).”

Let’s think about what those “methodologies” might be for a moment. Loosely put, this would involve the court ordering YouTube to develop or acquire and implement a “filtering” technology that would prevent unlicensed content from being made available on its service. Filtering actual clips of Viacom content would be much easier to accomplish than filtering Viacom material that is either “mashed up” or that is used as background material in so-called “user generated content”.

These are important distinctions, but they are distinctions that YouTube does not appear to make at this point. The first thing that needs to be understood is that YouTube is not a “web hosting company” as the EFFluviati would have you believe. A web hosting company offers space to end users to allow them to store things like websites, back up copies, contents of file servers and the like. YouTube doesn’t really do this, although they appear to do this sufficiently for the cloud of EFFluvia to descend in a fine spray.

My understanding of what is happening under the hood at YouTube is that when a user uploads a video clip, YouTube transcodes that clip from any of a number of acceptable file formats into the uniform file format used by YouTube. YouTube then hosts the transcoded copy created by YouTube. YouTube’s copy. The (a) copy that (b) YouTube (c) made. YouTube’s directly infringing copy.This process makes a lot of sense because this is exactly the way you would architect an uploading system if you wanted to have the ability to filter content. It would account for the filtering of pornography that must be taking place as Mark Cuban has pointed out and will no doubt find out about in the discover phase of his company’s lawsuit.

It is at this point in the uploading process, call it the offline holding tank, that YouTube could do a number of things. It could have a simple questionnaire in which it asked of the user “Do you own the content you just uploaded?” or better yet “Do you own the content you wish to upload?” It might also be a good idea to collect some personally identifiable information about the end user to avoid what is clearly scofflaws of a massive number who are ignoring the YouTube terms of service. We could think of a number of ideas for YouTube based on process, many of which are implemented by SNOCAP in its independent artist program.

NONE OF THESE PROCESS IDEAS REQUIRE $1 ON NEW TECHNOLOGY.

Another way of filtering would be to implement various file identification tools, some of which work better than others, to conclusively identify the files being uploaded. While there’s a cost associated with these files, the technology exists today and integration could commence this morning—or could have been commenced at the beginning of YouTube.There is another form of filtering used by iTunes, Rhapsody, Movielink, Napster, eMusic and others. In fact, it is probably the dominant form of filtering used in the online music industry today.

Get a license first, then host the legitimate file in a legitimate way and pay the freight.

Of course, Mr. Eric Schmidt, Grand Poobah and Pukka Sahib of the Great Enlightened Google would have us prove the intrinsic value of culture before he believes he has to get a license.As I find myself saying too frequently these days, sorry—crazy doesn’t get a seat at the table.So Viacom is dealing with Google the only way you really can deal with crazy in a civilized society. But if Viacom gets the injunctive relief they are asking for, surely no court will limit the grant of injunctive relief to Viacom’s content. Surely it will apply to all content on YouTube.

YouTube will then suffer the same burdens as iTunes and all other legitimate businesses, and even Google will be dragged kicking and screaming like little brats into the real world of the music business, not the faux world of the Cult of Google where by definition Google can do no evil.

I’m sorry, but what Google are doing to my business is at least metaphorically criminal if not actually criminal (and I suppose the jury is out on that story for the moment). Viacom will lead the way on this and others will follow.

The world rejected Leviathans running amok like Standard Oil, Microsoft, AT&T and others.

No reason to stop now.

Dedicated Followers of Lessig, Ya’ll

March 17, 2007 Comments off

Today was panel day at SXSW—I was on three panels in one day, which was a record. We were honored to have Marybeth Peters, Register of Copyright of the United States, participate in the panel I moderated with Ali Aydar, Rick Carnes, Jay Faires, Rebecca Greenberg and Patrick Ross. The panel was entitled “Can Art Survive Google?” and it attracted an interesting mix of thoughtful folk as well as hecklers from the Future of Music Coalition and a kilted young attention-starved Lessig acolyte who made it their business to try to take over the room to one extent or another.

The topic was on a subject of importance to creators who are watching their works eroded and gobbled up on YouTube, but rarely get a voice. No one from RIAA, no one from NMPA, or MPAA. Songwriters, artists, film makers, policy makers and technologists all were represented.

Now one would have thought that with all these serious leaders of the creative community present the Future of Music types would keep themselves under control lest they reemphasize the stereotype already so firmly burned into the brain of anyone who’d encountered them before. That would have been one way to approach the day.

Knowing that there had been sightings of certain radical elements of the Lessig cult invading Austin’s creative community for the SXSW conference, we decided to do everything possible to avoid having the panel hi-jacked by the self-absorbed catering to the attention starved—which meant that direct audience interaction had to be limited to submitting written questions. Music industry, and particularly Internet industry, conference panels are frequently the target of grandstanders under the best of circumstances, and seem to attract the self-appointed leaders of one mass movement or another. Since several of the panelists actually were appointed or elected by membership organizations or the U.S. government—as opposed to self-appointed representatives of “consumers”—my decision as moderator of the panel was to require audience questions be submitted in writing during the first 40 minutes or so, and I would review the questions before asking them of the panelists (which inevitably fall into clusters whether they are spoken or written).

I did this knowing that forcing those wishing to hijack the panel to submit their questions in writing would deny them the opportunity to grandstand, and that this would create the cognitive dissonance that would lead in short order to a psychological meltdown as their attention starved brains worked them into a mental tizzy seeking their dopamine fix. My only hope was to get the panel over with before smoke started coming out of their ears. I would also point out that some of the written questions I did receive were rather pointed and personal attacks on panel members (although not me, strangely enough) and were in my judgment whacky and a little scary. I made the editorial decision not to simply read the questions aloud, but rather to try to draw out questions from the hate mail that could be restated in a manner suitable to proper debate in polite company.

We almost made it.

Even though 95% of the audience complied with the request and we had approximately 20 questions submitted out of a room of around 90 people, the pathological craving for attention in a young Scot in the back of the room (I guess wearing a kilt in Austin wasn’t getting him enough attention) boiled over and he demanded to know in the closing minutes of the panel which of us represented “the consumer” and that he was offended that “the consumer” was not “represented on the panel”.

Now let’s think about that for a moment—I doubt that anyone believes that SXSW has some kind of affirmative action type obligation to require that all points of view are represented on all panels in the entire conference. This, of course, would be a great boon to the Kilted One as he probably has some ideas about exactly who should be “representing consumers” that would allow him to transition from heckler to speaker and have his genius recognized outside of the blogosphere.

The purpose of our panel was first to represent the interests of creators and to give those interests a voice, and second to allow whoever was in the audience, be they consumers, creators or whoever, a chance to ask specific questions about copyright issues of Marybeth Peters in a polite manner befitting her position. The Kilted One also criticized me for requiring written questions of the audience, meaning that he felt that writing questions down and forcing the questioner to articulate their question was an inferior communication process to the random bellowing of men in skirts.

What was both ironic and unfortunate was that because of the respective outbursts by the Future of Music Coalition representative and by Kilted One, we were unable to get to the pet topic du jour of the self-appointed consumer representatives—orphan works. Students of the subject may recall that Marybeth Peters presented the Copyright Office report on orphan works to the U.S. Congress, so it might have been somewhat relevant to hear from her on this subject rather than compete for control of the forum with an unknown man in a dress.

I actually don’t feel sorry at all that I implemented a written question policy at the panel as some of the many written questions we did receive really were aggressively personal toward panelists and more than a tad crazy in my judgment. Sorry–crazy gets a restraining order, but crazy doesn’t get a seat at the table. Every panelist was there because of my invitation and I wasn’t going to have their visit in my home town ruined by being threatened by some whacky out of towners. There’s a fine line between weird and crazy, if you know what I mean.

We were there for one reason and one reason only—to give a voice to artists and songwriters, the other little guys who are getting trod upon in the digital world, and particularly in the digital underground that is the favorite lurking spot of Professor Lessig.

Once again, the dedicated followers of Lessig managed to alienate the very people they should be courting through persuasion and passion. And the alienation was true, convincing and abiding. And–totally unnecessary. I believe that there are some–not many–truly thoughtful people in the Lessig camp who would be appalled at the disrespect tossed at a distinguished panel of potential allies, but they are clearly not in control of the acolytes.

The one consistent comment that audience members have had at my SXSW panels for these many, many years is that they learned a lot. As any teacher knows, you can’t offer a good learning experience if you are constantly being diverted by class clowns.

Schmidt to Creative Community: Prove Your Worth

March 14, 2007 Comments off

Google’s Grand Poobah Eric Schmidt was recently quoted in the Wall Street Journal as telling the creative community to “prove it” when he was told in negotiations that content has “intrinsic value”.

Now I have to remind myself that Eric Schmidt was supposedly brought to Google for the famous “adult supervision”, because he certainly had an infantile reaction to a legitimate and widely held view, namely that art and culture have intrinsic value. Which leads one to ask what planet was Eric Schmidt brought up on?

This reminds me of a situation where the owner of several fine horses left them with a stable who employed a negligent veterinarian. The vet’s neglect essentially killed the horses. During the damages phase of his trial for negligence, the stable owner attempted to console the disconsolate horse owner by saying that it was impossible to put a value on something as intrinsically valuable as a horse—so let’s not.

Nice try. Didn’t work, although the stable owner almost got himself a serious shiner.

In any event, it appears that Viacom for one have taken up Mr. Schmidt’s challenge. Of course, Mr. Schmidt apparently—and incredibly—was unaware that we have statutory damages for the very reason that we don’t want to have to prove the intrinsic value of each work, and that all copyrights are essentially valued alike.

Sorry, Mr. Schmidt—you have to prove it. And good luck.

But we shouldn’t be too surprised that Schmidt got it wrong, he was the one who agreed a $200 million liability escrow fund was good enough to cover potential copyright infringement claims against YouTube. That’s billion with a “B” Mr. Schmidt.

Do All Evil

March 14, 2007 Comments off

e·vil –adjective
1. morally wrong or bad; immoral; wicked: evil deeds; an evil life.

2. harmful; injurious: evil laws.

3. characterized or accompanied by misfortune or suffering; unfortunate; disastrous: to be fallen on evil days.

4. due to actual or imputed bad conduct or character: an evil reputation.

5. marked by anger, irritability, irascibility, etc.: He is known for his evil disposition. –noun

6. that which is evil; evil quality, intention, or conduct: to choose the lesser of two evils.

7. the force in nature that governs and gives rise to wickedness and sin.

8. the wicked or immoral part of someone or something: The evil in his nature has destroyed the good.

9. harm; mischief; misfortune: to wish one evil.

10. anything causing injury or harm: Tobacco is considered by some to be an evil.

11. a harmful aspect, effect, or consequence: the evils of alcohol.

12. a disease, as king’s evil. –adverb

13. in an evil manner; badly; ill: It went evil with him. —Idiom

14. the evil one, the devil;

Satan.

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