Jason Fry is suggesting that copyright law may be out of step with the modern world
This is the YouTube curse: If a clip gets a lot of viewers, it immediately falls under scrutiny — and if it’s copyrighted material, as is often the case, the clip may well be removed, leaving useless links and frustrated viewers in its wake. Asking that clips be removed is a copyright holder’s right, of course — but this scenario raises a host of questions. Is there a level of success video sites dare not rise above, for fear of being sued into oblivion? And are our copyright laws still the right fit for an era where user-generated content is an increasingly important part of both art and daily life?
Maybe a little coercion is what’s needed — particularly when the balance between content owners’ rights and the public good seems increasingly out of whack. Lawrence Lessig opens “Free Culture,” his superb book on copyright and creative control in the Internet age (see more here), with the Supreme Court’s 1945 decision ruling that aircraft weren’t trespassing on the property of the Causbys, a North Carolina farm family, despite long-established law declaring that property rights extended to “an indefinite extent, upwards.” Such a doctrine “has no place in the modern world,” wrote Justice William Douglas, who imagined near-infinite trespass suits against airline operators and concluded that “common sense revolts at the idea.”
Maybe the answer is Creative Commons? I’m not sure copyright law needs to change, but I am sure that the way media companies value content need to change. The value is in the network. Free distribution is your friend.
Jason also makes the point that YouTube has radically changed online video:
YouTube is revolutionary, and it didn’t take $1.65 billion from Google to make that plain. Remember how bad Web video used to be? It was a minefield of missing codecs, players that tried to take over every function of your computer once installed, and lots of staring at the dread word “buffering.” If a link turned out to be video, many Net users would simply corner-X the player out of existence rather than wind up aggravated.
YouTube changed all that. Suddenly video was easy for readers and for Web-site creators. And in time, it’s become part of more and more sites, instead of some awkward tack-on to be endured rather than appreciated. Readers can watch a video just by clicking on a still image, without going somewhere else or dealing with a new window.
Where Jason gets off track is comparing YouTube and Napster. Napster was essentially created to help people steal music. YouTube is more like a discussion forum aimed at helping people share ideas and themselves, as such it is a common carrier and protected by Federal law. YT is obligated to remove intellectual property upon request, but should easily win any copyright lawsuits filed against it. In fact, YouTube may be overly aggressive in removing clips upon request. I think a case could be made that the David Letterman clip Fry mentions was uploaded and could be maintained on YouTube within the scope of fair use.
If you keep these points in mind, the idea that copyright law needs to change seems less compelling.