At a New York conference on Monday sponsored by The Deal ( a
financial news organization), Michael Fricklas (Viacom’s general
counsel) came out with a string of ironies, omissions and
misinterpretations about Online Video and copyright violation.
The biggest and best was that “Viacom likes fair use!”
Fricklas, of course, is the legal force behind
Viacom’s $1 billion
suit against YouTube for copyright infringement. It was therefore
somewhat shocking to hear him say that “Litigation is a poor
way to
resolve disputes,” particularly for a suit that Fricklas
expects won’t
get heard until 2009.
On the other hand, lawsuits are useful because
they help get their side of the issues out, as opposed to those people
organized by law professors and people who love Napster’s
free music
“who had center stage.”
Instead, Fricklas prefers a combination of automatic filtering
and
appreciation for fair use is a better set of tools for dealing with
those pesky videos that pop up from time to time.
Praise For Yahoo, Microsoft & AOL
The problem is, of
course, that neither is particularly helpful from a true fair use point
of view. In his comments, Fricklas praised Yahoo!, Microsoft and AOL
for saying those companies can work with automated systems to keep
copyrighted material from a Web site.
In a true Kumbaya moment, Fricklas said that all of the
companies,
content and Internet, have more in common than is commonly perceived.
After all, he said, as media companies, Viacom itself is interested in
fair use as a “user of content.”
MTV, for example, relies on fair use
in its programming, he said, adding that he wouldn’t like to
see every
kind of right locked up tight for media companies. “We need a
robust
world where people use things in popular culture in the right kinds of
ways,” he said.
Praise For Veoh Too
Fricklas then praised startup Veoh, another video-posting
site,
which has the backing of ex-Disney Chairman Michael Eisner and ex-MTV
chief Tom Freston. The site, which just raised $25 million in venture
capital, is “doing deals with licensed providers.”
Let’s see if we have this straight. Lawsuits, like
the one Viacom
filed, don’t settle disputes, but they have good propaganda
value. Fair
use is good, but mainly for media companies to use on their terms, the
aforementioned “right kind of ways.”
Veoh is a nice cooperative little
site – except Fricklas didn’t mention
that’s Veoh embroiled in
copyright litigation with Universal Music, which has filed one of those
pesky lawsuits accusing Veoh of the things Viacom is accusing YouTube
of doing.
Veoh has filed a countersuit. (Actually, Veoh filed first as
a defensive measure. Didn’t help.)
And what about those automated systems? Fricklas conceded that
not
every unauthorized use is illegal. But, he said, without any
commentary, parody or additional elements, putting up a clip of a show
“is never a fair use.”
Within that context, the “exact copies” of
a
show clip are easy to detect, and then can be exorcised automatically.
The Daily Show On Net Neutrality
What standard is Fricklas looking for? The biggest problem, he
said,
is people “taking wholesale songs and TV shows and making
them
available for free.” The Daily Show (a Viacom production) has
done some
of the funniest, and most instructive, bits on Net Neutrality.
While no
one is condoning putting up an entire show, what about putting up on a
video site the three minutes or so of John Hodgman ripping up an
envelope to demonstrate Net Neutrality, particularly if Comedy Central
doesn’t want to put the clip on its site?
Should that explanation be
locked away because Viacom wants it locked away?
By Fricklas’ standard that he told the conference,
only an
individual clip of a show made available to people in a small,
non-commercial way that is transformative would be allowed.
Clearly,
the Daily Show’s discussions of Net Neutrality posted to
YouTube
wouldn’t be allowed unless they were in some way made part of
a
commentary. I suppose one could put up a video saying, “watch
this clip
of John Hodgman explaining Net Neutrality. He got it
right.”
That seems
like a lot to go through to get the same message across. The act of
posting is an implied commentary that it’s worth watching.
The DMCA Doesn’t Come Into It
Fricklas also wouldn’t allow The Digital Millennium
Copyright Act
(DMCA) to help YouTube’s defense. That’s because,
under his
construction, the portions of the DMCA that YouTube relies on relate to
storage, and were developed in a day when people were saving things on
email, or on web hosting servers.
Except that the DMCA covers more than
servers – it talks about the conditions under which service
providers
are exempt from claims of copyright infringement, and deals with
transmission and routing of messages, as well as storage.
Art Brodsky is a contributing author discussing matters relating to the broadband video and IPTV industry. His work can be found on Public Knowledge. Post has Some Rights Reserved.
