Viacom: YouTube Filters for Porn, but not for The Daily Show

 
 
By Steve Bryant  |  Posted 2007-03-26 Print this article Print
 
 
 
 
 
 
 

Viacom published on the Washington Post op-ed page on Saturday their case against YouTube.

Michael Fricklas, Viacom's general counsel, argues that while the DMCA fosters innovation by allowing Web companies (such as e-mail providers and file storage sites) to host data without fear of prosecution, YouTube abuses that privilege to create an entertainment destination that relies on copyrighted content.

YouTube, Fricklas argues, profits by publicly displaying the illicit content on its servers, not from the technical fact that it simply hosts the files. And YouTube, he says, has the ability to monitor its database for copyrighted content because the company already filters for pornography and spam.

Those filters could prove to be YouTube's undoing. As law experts note, once you begin monitoring your site for quality purposes--i.e., removing porn--you lose your protections under the DMCA.

Meanwhile, the DMCA itself is under attack from an unlikely source: Bruce Lehman, former assistant secretary of Commerce during the Clinton administration, recently admitted that the DMCA is a failure. Why? Because the DMCA was designed, basically, to foster online innovation--allowing ISPs, for instance, to send data without worrying if it was copyrighted--while protecting the business models of record companies, which were relying on the physical limitations of economic scarcity. In other words, the DMCA attempted to create an artificial scarcity of digital goods by giving companies a means to police copyrighted material online. 

Unfortunately, the scale of digital distribution online makes that process untenable. Viacom itself has attested--as has Doug Morris, CEO of UMG--that it's impossible to keep up with the amount of infringing works online. The onus, they say, should then be on the YouTubes of the world.

I'm not a lawyer, so I can't say how that argument will shake out. But as NBC and News Corp. take proactive measures to compete with YouTube by creating their own online distribution system, one wonders if Viacom should concentrate on being more imaginative and less reactive. 

 
 
 
 
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