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Viacom's Dangerous Appeal Brief in Viacom v. YouTube - Updated 2Xs

By Pamela Jones et al.

Viacom has decided to appeal its loss on summary judgment to Google/YouTube to the US Court of Appeals for the Second Circuit. And it will be represented by Theodore Olson, which I take to mean that Viacom seriously wants to win in that it cared enough to hire one of the very best. Here's the Viacom filing as PDF, and I've done a text version for you.

You can watch both Mr. Olson and David Boies in action on Monday, if you'd like to, on CSPAN, by the way, which will broadcast the Proposition 8 appeal of Perry v. Schwarzenegger. It starts at 10 AM PDT.

Viacom would like the court to carve out an exception to the DMCA, essentially reinterpreting the law so that YouTube no longer qualifies for the DMCA's safe harbor immunity. It's, to me, a really dangerous document, in that it suggest in effect a system whereby fair use is technically impossible or so difficult and expensive to make use of that no average guy will do so. It argues that YouTube's refusal to implement a technology-based filtering system Viacom likes, Audible Magic, to prescreen uploaded video places YouTube outside the protection of the DMCA. It also argues that you can be guilty of direct infringement if you benefit financially from infringement, even if you don't specifically know it's happening.

That tells me something central: that Viacom isn't even thinking about fair use or if it is, it doesn't care about it. Some argue [PDF] that the DMCA already chills fair use. But Viacom still isn't satisfied. It wants a requirement added to the DMCA, in effect, a duty to monitor.

Here's the problem with filtration systems: Computers don't know a thing about fair use, and there's no way to teach them about it, because it's analyzed on a case-by-case basis. You can't even teach the general public and so set up a reliable system of user-flagging, because they don't know what fair use it either. Really, only the copyright owner can stand up and tell us when he thinks a quotation goes beyond fair use, and then a judge has to decide who is right based on some factors that are known, but unpredictably interpreted, case by case. You can't write a particularly effective algorithm from such unknown and unknowable factors. It takes a human to weigh such things out.

Full post as published by Groklaw on December 05, 2010 (boomark / email).