All’s Fair in Fair Use?

The Viacom/Google-YouTube copyright skirmish could be the test case that helps reshape copyright for the digital era. It also could be just the latest in a string of lawsuits desperately attempting to clarify what constitutes fair use.

The problem is, one man’s “fair” might be another man’s “foul.”

While an army of lawyers slaps lawsuits on the YouTubes of the world to get their copyrighted video pulled down — only to see more sprout up on the sites the next day — any attempt at effective forward motion seems like an endless round-robin of put-it-up-take-it-down.

Copyright holders are faced with negotiating the realities of digital content. They find themselves having to live with a looser interpretation of how their content is used, or “sampled” even, especially in the face of a shifting public perception about what is OK to use fairly and what should be paid for, or licensed, in the intellectual property realm.

Viacom’s lawsuit against Google-YouTube is not the first of its kind, but the months-long drama, which got under way shortly after Google purchased YouTube for $1.65 billion in November, has raised the profile of fair use in the 21st century.

In February, following what Viacom called frustrating distribution negotiations, the studio ordered Google to remove more than 100,000 copyrighted clips from such Viacom channels as MTV and Comedy Central. At the time, Viacom expressed its hope “that YouTube and Google will support a fair and authorized distribution model.” The studio’s hopes were dashed, however, and a month later sued Google and YouTube for “massive intentional copyright infringement” of Viacom’s entertainment properties.

Viacom, the copyright holder, is trying to regain control over properties that spread rapidly throughout the digital age. And Hollywood, which helped lobby for fair use restrictions in the Digital Millennium Copyright Act (DMCA) in the first place, is now crying foul on Google, and thinks it is following the rules.

But, as Google spokesperson Ricardo Reyes noted, the DMCA is the “millennium,” not “decade,” copyright act. Having said that, YouTube abides by the DMCA by honoring any request to remove content, he added.

“If you don’t want it up there, we don’t want it up there,” said Reyes, citing the multiple warnings Google has in place regarding posting infringed content and a punishment policy. “Three strikes, you’re out.”

But, he said, Google cannot police the content before it’s posted. “The user-generated [material] is still the most popular.”

With all of these new technologies, the structure of rewarding the creator, and creative industries, will be changing, said Peter Kaufman, president and CEO of Intelligent Television, a nonfiction media company that produces television and video programs, films and radio in association with museums, libraries, archives and universities.

The people who are paying — producers, consumer underwriters, advertisers — all need to recognize the fact that they are shareholders. Google is a search-engine culture, but it is also a producer, distributor, and funder/sponsor. They have to balance their roles.”

When books were the thing

Google’s Viacom-induced copyright-infringement woes are not the first at the hands of a third party.

When the company announced Google Print and followed that with the announcement of Google Library, the hue and cry echoed throughout the publishing industry — the third wave of the technology juggernaut after movies and music.

The Authors Guild, an association of published authors, slapped a lawsuit on the company. It said Google Print, a program allowing Google, in conjunction with publishers, to digitize books and make them available to search, violated the copyrights of those books’ authors.

Today, the issues those suits raise still hang in the balance: Does this really hurt content providers?

“Google’s relying on the fair-use defense even though many of the works are still in copyright,” said Roy Rosenzweig, director of the Center for History and New Media at George Mason University. But he said that most of the material that falls into that category is “pretty obscure” and wouldn’t otherwise be accessed.

Paul Aiken, executive director of the Author’s Guild, disagreed. “Just because something is out of print doesn’t mean it will stay that way,” citing instances where the guild itself has resurrected titles.

The question is whether the libraries have the power to control the works and how they’re distributed.

Carole Handler, vice chair of the IP Litigation Practice at law firm Foley & Lardner took the social responsibility of libraries into account, especially when they are funded, in part or in full, by the public purse? “Do they have the right to give away what’s been given to them? If it is a legitimate thing to do, why is it restricted to libraries?”

Are the seams bulging?

Can one umbrella law take care of all these issues? Handler said that the nature of copyright law is an 18th-century Western concept, protecting the rights of the individual and creating economic incentive. Other countries do not operate that way, she added.

“We put the profit motive ahead of the public benefit,” she said. The social structures of other countries have their own ways of providing for their creative producers. Now, “consumer benefit could be taking bread out of the mouth of the creator.”

Rosenzweig said copyright protection is getting stronger rather than weaker. But rather than preempt controversy, the DMCA functions more as a platform for the revolving door of lawsuits circulating throughout the current digital environment.

At least the lawyers are busy.

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