I have a revolutionary request. Please share the following link with civil libertarians throughout the social networking land: www.aclu-wa.org/blog
Okay, so it’s a link to the ACLU of Washington Blog. But it’s a revolutionary request in the sense that blogging and social network are themselves revolutionary. Twenty years ago, only a select few had the ability to share information with a wide audience. Today, I can write a blog post, record a song, shoot a video, or draw a picture and share it with whomever I want, as can anyone else with a web connection. This free flow truly opened the channels of mass communication to the masses, creating a power shift that has democratized the way in which we share and consume information.
The democratizing effect is arguably the Internet’s greatest feature, resulting in a revolutionary explosion of free speech and expression. But this effect recently came under fire in Viacom v. YouTube, 2010 U.S. Dist. LEXIS 62829 (S.D.N.Y. 2010), a case affecting the fundamental framework of how content is created, disseminated and stored on line. Thankfully, by ruling that YouTube was covered by the “safe harbor” provision of the Digital Millennium Copyright Act (DMCA -17 U.S.C. § 512), the U.S. District Court for the Southern District of New York might have just saved the Internet as we know it.
One might think it a tad hyperbolic to claim that any one judicial opinion could save the Internet. But without it, the Internet could devolve into a series of tubes in which access is restricted to a few, select, familiar faces. My request to share this blog would be impossible if YouTube and related sites were not covered by the DMCA safe harbor, because this blog is copyrighted and social networks would be subject to potential infringement claims. In fact, blogs and social networks might cease to exist.
Here's why: Prior to the DMCA, which was enacted in 1998, a website could be held liable if a user posted infringing material. Suppose that I re-published a copyrighted work online – for example, pretend I shared a New York Times article using Prodigy (remember, we’re talking about the mid 1990s). Pre-1998, copyright holders could sue both me and Prodigy for infringement. Considering that Prodigy has deeper pockets than me, they would likely set their sights on Prodigy.
In order to avoid liability, Prodigy and other providers would simply censor everything. The outcome would be disastrous for free speech online. The burden of reviewing all submitted content to determine whether it infringed a copyright would be too costly. Providers would either create heavy-handed rules to limit content-creation, or they would enter into agreements with certain content creators and allow only those entities to upload content. Either result limits free speech.
To prevent this from happening, and to ensure the Internet remained a forum for the free exchange of ideas, Congress included the safe harbor provision when it enacted the DMCA. The legislative history states that “by limiting the liability of service providers, the DMCA ensures that…the variety and quality of services on the Internet will continue to expand.”
The safe harbor provision provides copyright immunity to any Internet provider that allows users to upload content, so long as the provider promptly removes infringing material when notified by a copyright holder. This means that as long as YouTube takes down offending content when notified, they cannot be sued for infringement. The notifications must be reasonably specific – for example, Viacom must refer to specific content; they cannot simply tell YouTube to remove “all Viacom-owned content.” Thus, the DMCA places the burden of enforcement on the copyright owner, not the content provider.
In the Viacom case, Viacom charged that YouTube should not qualify for the safe harbor provision because it was “apparent” that infringing material existed on its site, and that YouTube “failed to do anything about it.” But this argument doesn’t really make sense, as Viacom submitted over 100,000 notifications to YouTube, which then removed nearly every infringing video within 24 hours.
Viacom’s real point was that YouTube should not get safe harbor immunity because its (YouTube’s) technology provides the capability for widespread infringement. In other words, YouTube should be held liable – i.e., punished – because it allows users to submit and distribute content. According to Viacom, YouTube should actively monitor its site for infringement. This flips the DMCA safe harbor provision on its head, as it would shift the burden of enforcement from the copyright holder to the Internet provider. As noted in their brief in support of YouTube, the Electronic Frontier Foundation, Center for Democracy and Technology, American Library Association, and others point out that the DMCA safe harbor provision “[makes] it clear that a service provider need not monitor its service or affirmatively seek facts indicating infringing activity in order to enjoy the safe harbor. See 17 U.S.C. § 512(m)(1).” The job of YouTube is not to protect the value of Viacom’s brand.
In addition, affirmative monitoring would be nearly impossible – and it would spell the end of YouTube, Wikipedia, the Creative Commons, MySpace, Facebook, Scribd, as well as any other provider or service that allows users to submit and share content free of charge. This is precisely the doomsday scenario the safe harbor provision was designed to avoid.
Judge Stanton noted that 24 hours of new material are uploaded to YouTube every minute – or over 12 million hours of video per year. According to the U.S. Copyright Office’s 2007 Annual Report (the latest available), between 460,000 and 660,000 copyrights have been granted per year since 1980. Copyright owners demand different levels of protection – some freely share their work via speech-friendly fora such as the Creative Commons; others (like Viacom) vigorously guard their works as a store of value. There’s simply no way that YouTube could or would review 12 million hours of content against the content of over 18 million registered copyrights and determine, accurately, whether any one of the millions of submissions violates any one of the millions of copyrights. It would be too time-consuming and too expensive, so YouTube and similar providers would simply stop accepting user submissions free of charge. So much for free speech on the Internet. This is like banning pens to prevent people from drawing copyrighted pictures.
Judge Stanton acknowledged this, quoting from the U.S. District Court for the Central District of California. In UMG Recordings, Inc. v. Veoh Networks, Inc., 2008 WL 5423841 at 6 (C.D.Cal. 2008) the California court stated: “[I]f providing access could trigger liability without the possibility of DMCA liability, service providers would be greatly deterred from performing their basic, vital and salutary function – namely, providing access to information and material to the public.”
In other words, no safe harbor, no free speech online.
Rarely has Congress acted so clearly to affirmatively uphold and protect free speech. This is evident within the DMCA itself, which contains many provisions that restrict speech in order to expand copyright protection beyond its goal of providing incentives to create. But the safe harbor provision is a rare example of Congressional effort to support free speech, and we’re thankful that the court refused to allow private actors to chip away at it.