I have my complaints with the DMCA’s notice-and-takedown regime, but where I think it goes too far toward chilling speech, Viacom thinks it doesn’t go far enough. That’s the gist of its recent complaint against YouTube. Viacom argues that despite YouTube’s DMCA compliance, taking down videos when notified of copyright claims, the site should be held liable for direct and indirect infringement of Viacom’s copyrighted works (specifically, public performance, public display, reproduction, inducement, contributory, and vicarious infringement — what, no derivative works claim?).
Viacom is trying to renege on the bargain of the DMCA, in which copyright holders get pre-judicial injunctions against claimed infringement, and service providers are guaranteed immunity so long as they follow the takedown procedures. Viacom never alleges YouTube failed its side of the deal — it doesn’t point to a single un-complied-with takedown demand. Rather, it claims that requesting takedown is just too hard. Not content with a procedure that already strips away the free-expression protections of judicial oversight, Viacom wants to shift the burden to YouTube (and others like it) of preemptively filtering materials for possible copyright infringements.
Viacom’s approach would have serious anti-innovation consequences. The DMCA gives hosting startups a predictable framework. (Note that YouTube succeeded as an independent startup where the established Google couldn’t make Google Video popular.) Where hosts can’t anticipate what users will post, they can nonetheless ensure against copyright liability by promising to take down material they’re told is infringing, by any copyright claimant.
Viacom would instead have them negotiate first with (any? all?) copyright holders to install a pre-filtering system. Since automated filtering is far from perfect, this system would be both expensive and inaccurate. It would bankrupt the small startups and leave the larger ones open to the next lawsuit from a copyright holder who hadn’t been consulted on the first filter. Google might be able to go down that road, but they’d be about the only ones. Viacom and friends would have veto power over any newcomers to the field.
Now that may well be what Viacom wants. That veto is what they got with another provision of the DMCA, the anticircumvention laws, but it’s not what serves the public best. The safe-harbor bargain may be flawed, but Viacom’s proposed alternative is worse.