‘Coulton-gate’ not the moral equivalent of YouTube
Even if we ignored the fact that “Coulton-gate” was all just a big mistake and that Viacom was licensed for using Johnathan Coulton’s content all along, it was never the “teachable moment” that Harold Feld would have us believe. “Coulton-gate” at worst was a small violation of intellectual property and was never the moral equivalent of the sustained, deliberate, and systematic piracy of content perpetrated by YouTube. UPDATE 6/11/2010 – Harold pointed out that he wasn’t arguing moral equivalence in his comments to this post and that it was the video he linked to that made that argument.
Harold Feld posted a video at the end of his post where the narrator declared that “Viacom did to Johnathan Coulton what YouTube had done to Viacom”. Feld essentially argues that both cases were just innocent mistakes from confusing licenses that anyone could have made. The problem with this line of argument is that there is generally little confusion about copyrights but much confusion over the many flavors of creative commons.
If you asked the average person if it is legal to download the movie Ironman 2 over P2P, some of them might try to rationalize piracy but they all know that it is “technically” illegal. If you asked the average person about the creative commons (CC) license, most would assume that it meant free content. Most people and even many website owners don’t know the difference between a CC license with attribution requirements or CC share alike or CC non-commercial or CC with no derivative works.
But ignorance of the law is never a usable excuse in the eyes of the law. Had Viacom violated Johnathan Coulton’s rights (which they did not), they should be held responsible to the full extent of the law. In this case, and even if we use the higher punitive rates that Viacom is arguing for in the YouTube case, the damages would not have exceeded a few hundred or a few thousand dollars at worse. In the YouTube Viacom case where YouTube knowingly left copyrighted content online and even uploaded and promoted copyrighted content by a founder of the company, YouTube should be responsible to the full extent of the law. So while these two cases aren’t remotely equivalent, they should be held to equivalent standards and they don’t get to use the ignorance defense.
George:
Just to clarify, I included the video at the bottom because it was the source for the story and I wanted to make it easy for readers to see it. I was not arguing moral equivalence — which I agree was what the commentator on the vlog was arguing.
I was making a different point, that it can be very difficult to ascertain with certainty where rights are and even a company like Viacom or the holder of the rights might be honestly confused. Policymakers often do not appreciate this difficulty and therefore lump all infringement (or allegations of infringement) into the same category of blatant infringement. As I argue, the danger of a system like three strikes, or copyright filtering, is that it treats understandable confusion such as occurred here exactly the same way it treats blatant and knowing infringement.
In other words, I argue against the moral equivalence of these cases, not for it. My concern is that law should be flexible enough to respect the difference. But many of the changes of law proposed in such agreements as ACTA do not reflect these differences. Instead, they rely on the very moral equivalence you argue against.
I do not think it mattered one bit to Feld whether there was any substance to his charges. Feld was attempting to attack Viacom because he and his inside-the-Beltway Washington DC lobbying group, Public Knowledge, lobby for Google (owner of YouTube).
Jeez, Brett, is the “lobby for Google” argument anything but ad hominem? C’mon, Harold made an entirely reasonable point about the difficulty of some infringement issues. He’s right, a lot of infringement comes down to lack of readily available information about usage rights and obligations. To the extent that we’re talking about the hard boundary cases, I agree with him.
On the other hand, Harold, I think your side on this wants to make copyright/IP about the difficult boundary cases, rather than the general rule (and hard cases make bad law). IP owners are much more concerned about the blatant, wholesale theft (or commercial use), rather than the arguably fair use cases or the unintended infringement.
The result is that we’re not necessarily talking about the same things.
I tend to think that the optimal solution to a lot of these issues is the positive path (new business models that make payment a better solution than piracy/infringement) rather than the defensive path (ex post facto enforcement). And yet, that solution will be difficult because potential new business models and technology solutions are constantly attacked or under threat of being regulated out of existence. IP owners don’t have a lot of tools left to defend themselves. That situation creates many of the boundary case problems.
Jon,
I agree that bad facts make bad law. But when you’re thinking about legal policy, you do have to consider unintended consequences and boundary cases.
If there was a proposed law (or court ruling) that, under a reasonable interpretation, could lead to bad consequences, I would argue against that proposed law. I would prefer a law that dealt more cleanly with edge cases, that ensured that judges have discretion, etc.
Naturally, once that bad law was in force, I would do everything in my power to prevent the bad consequences from coming to pass. I don’t think this is inconsistent.
I don’t want to pile on here, but since it’s a good discussion…
Jonathan Coulton actually followed up on this whole kerfuffle and pointed out something pretty important: Since the photos that Jonathan used in his mash-up video were originally CC-non-commercial licensed, even if Jonathan wanted to legitimately license his video for commercial purposes, it really wasn’t up to him how iFilm (which became SpikeTV, owned by Viacom) used his mash-up video. It was up to the owners of images posted and cc-licensed them on Flickr. As Jonathan says:
I think that was Harold’s point as well.
Just to refer to the Youtube / Viacom case a second, tho, I believe that Viacom is advancing a theory of copyright liability that would indeed hold Viacom liable in this Coulton/SpikeTV/Flickr instance.
@Harold – Thanks for the clarification. Your comments are duly noted and I’ll post an update in the blog. I agree with you that there are lots of confusing issues with regard to copyright. However, I think the YouTube case was a clear cut violation when you have the founders of the company uploading copyrighted material and promoting it, and you have the founders emailing each other that they want to keep the copyrighted material online for as long as possible because the site depends on that traffic so that they can turn a quick profit in the sale of YouTube.
@AlexC – Good point about the other CC non-commercial images. But I stand by my point that Viacom should be liable to the full extent of the law. They should pay whatever money they owe for violating those CC license using the same formula that they are asking the courts to apply to YouTube. That said, the damages hardly add up to more than pocket change for Viacom because this was a brief and accidental violation. The same can’t be said about YouTube.
Furthermore, isn’t Mr. Culton somewhat responsible if he licensed content to Viacom that he doesn’t own? If Mr. Culton creates some content out of someone else’s content and licenses it to a company, how is that company to know that Mr. Culton deceived them? What if Mr. Culton stole a car and then sold it to Viacom. Is Viacom responsible for theft?
@George Ou. You’re right, Coulton is certainly responsible legally — although I believe under current law SpikeTV would arguably have been liable for violating the Creative Commons licenses associated with the photos, although they could require Coulton to indemnify them. I don’t do enough litigation on this to know what defenses there are/aren’t.
@Jon Henke. I think our position is that (a) hard cases are less rare than people think, and (b) even if they are rare, they matter to the people involved. If even 5% of people who would have their subscription terminated under a graduated response system are “false positives,” or 5% of the speech blocked by a filter is improperly blocked because the person diseminating it does have a right to do so, that should be unacceptable because they potentially suffer enormous and unremediable damage (or, as one person said at the mobile marketing event I attended this morning, “I cannot run a campaign yesterday.”) To analogize to First Amendment jurisprudence, this is why prior restraints of speech are so rarely given — even in copyright cases. This is why the Court of Appeals overturned the preliminary injunction in “The Wind Dun Gone” case. Because the rights holders to “Gone With The Wind” could be compensated for infringement with money, but the author of the Wind Dun Gone could not be compensated for the inability to speak through her book.
For us, it’s like the Fourth Amendment cases. Everyone sees the drug dealer who gets off on a “technicality.” No one notices — or can even quantify — the number of people who don’t get randomly searched. But the right to be free from unreasonable search and seizure is among our most cherished of liberties, precisely because “better ten guilty men go free than one innocent suffer.” That applies even more so where a remedy exists for the rights holder for compensation, but no remedy exists to the individual whose speech is wrongfully blocked.
@John – We may disagree about where the lines are drawn and how cost/benefit is calculated, but I agree with your general point.
@AlexC – Licensing is a real problem. It’s incredibly complicated. If I might use pop culture metaphors: It seems to me we have a Google licensing system (search through an unclear system, then just use it and see what happens) when we either need an Amazon licensing system (readily findable licenses made available to any takers) or an eBay licensing system (more granular price and access controls by the content owners). That’s an oversimplification, but you get the idea.
@Harold – You are correct, hard cases do matter. But you know, I think everybody wants a system that is more finely tuned. Distributors and content owners hate the idea of subjective judgments and complicated recourse. Even if they get 9999 out of 10,000 takedown judgment calls right and act completely in good faith, that 1 out of 10,000 (which probably means 100-200 errors a year) is a potential liability and PR disaster. What’s more, it doesn’t really help them to block legit fair uses. But it’s very difficult to monetize high quality content (which we all agree is crucial) out of the front door if people are handing your own content out the back door for free.
This is an area where people just end up talking about two different things. One side says “hey, I’m being robbed”, while the other side says “don’t hurt innocent bystanders!” There has to be a better mechanism to fine-tune the enforcement process and/or to differentiate legitimate distribution from illegitimate distribution.
@Jon Henke: I’m more pessimistic about finding better systems. In any system run by human beings, there will be mistakes. So the question becomes who should bear the cost of those mistakes and how do we value the relevant risks. It’s all trade offs. The question is how to get to the best set of trade offs.
@George Ou: If you read Steve Chen’s declaration (www.google.com/press/pdf/chen_opp_declaration.pdf) you’ll see that Viacom quoted the founders’ emails completely out of context. They were not uploading and promoting pirated content.
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