The message I took away from the Director Guild of America's statement on Google's win over Viacom is that the DGA desperately needs someone other than president Taylor Hackford to write statements like this in the future.
The statement is full of unsupported inflammatory rhetoric, distortions, and falsehoods. And this criticism is coming from a person who strongly supports unions in general, and Hollywood guilds specifically. Statements like this reflect a complete lack of interest in the facts.
A lot of people who have sided with Viacom don't seem to understand the core issue. They seem confused about how the law in question works, lash out emotionally when the chips don't fall their way, and don't even really seem to care why they lost and while they continue to lose in the future. The over-the-top apocalyptic rhetoric isn't helping, either.
In the official DGA statement on the ruling, Taylor wrote that "..the judge's decision, which permits those who engage in or enable Internet theft to build sites using illegal content provided the site operators promise to take the illegal content down later if they are caught and notified."
Let's be realistic here, there's no such thing as "Internet theft". This is not like auto theft in which one steals a car. Nobody can steal the Internet. What we're talking about is copyright infringement, in which nothing of ownership is literally taken. This isn't someone walking into Walmart and walking out again with a DVD stuffed under their coat. A perceived sale is lost when something is illicitly copied without permission, but that is not the same as depriving someone of physical ownership.
Equating unauthorized copying with physical theft is a common tactic for people trying to make a point in all the wrong ways. People don't see anything wrong and don't perceive anyone to be hurt or to have lost something from copying an MP3 or downloading a television show. In what amounts to a weak guilt trip, property defenders stretch an already inappropriate analogy a bit too far to make an equally inappropriate point.
What Hackford and company would love for you to take away from that is the end result of exaggeration and dishonesty, and that quote about theft is overflowing with both. Saying judge Stanton's decision allows sites like YouTube to "engage in or enable" infringement is factually false. If YouTube itself were to directly engage in infringement, has Hackford claims it can, where some employees intentionally copied videos onto the site that they knew were protected by copyright, both that employee and YouTube would be liable under copyright law for damages.
The DMCA doesn't give YouTube immunity if YouTube is the one doing the copying.
The purpose of the DMCA's "safe harbor" clause is to protect companies like YouTube that aren't necessarily aware that someone has illegally uploaded something to their site. And in YouTube's case specifically, it would be physically impossible for them to know, given how many videos are uploaded every day. This philosophy could be applied to any number of actions which would make people liable for the actions of others. If someone does a drug deal on the street outside your house, and then dumps the drugs in your yard, nobody would seriously consider charging you for possession because you are not responsible for what happened.
Protecting the rights of content creators is important, but so is using common sense in protecting the rights of others who play a part, but are not wholly responsible. Punishing YouTube for the actions of users who upload videos to its site without it having any reasonable ability to verify who owns them and who has permission, would effectively put the entire hosting industry out of business from top to bottom.
Facebook would be gone. Twitter would be gone. Gmail would be gone. All of these companies allow users to upload information to their sites and they cannot possibly check all of it for copyright infringement. Without a reasonable safe harbor provision, you could email an MP3 to your friend, sending it through Google's Gmail servers, making Google liable for "engaging in or enabling" infringement on a massive scale far beyond what YouTube has ever done.
And who could possibly sift through every single message on Twitter or every email on Gmail to make sure nothing being posted is protected by copyright? And in which country do you check? If the copyright owner is in Germany, and the Twitter user sends it from Britain, and the message goes through and is stored on an American server, who is liable, and to which country's laws?
There's also the matter of exaggerating YouTube's response to takedown notices, making it seem as if YouTube is only obligated to take infringing content done whenever it feels like it. Or, as Hackford put it, "..the site operators promise to take the illegal content down later if they are caught.." While I'm not aware of any ticking clock scenario in the DMCA, it does say that the content must be removed "promptly", or a company will lose its immunity.
As noted in a story I recently wrote, when Viacom created a list of 100,000 videos it claimed to own on YouTube, YouTube removed all of them within 24 hours of being notified. That clearly demonstrated that there is no "later", that YouTube takes DMCA takedown notices seriously and works quickly to remove infringing videos.
Then there's rather striking distortion:
This decision means that content creators and copyright holders will carry 100% of the burden of policing the Internet and pursuing takedown measures for every instance of copyright infringement that they are able to find.
That's not true, at least not in the way that Hackford claims. The burden of locating instances of alleged infringement, and taking action, has always been on the copyright owner. Always. Long before the Internet was ever envisioned, it was up to a company or content creator to find and sue the companies or people who have violated their rights.
Nothing in this judge's decision changes that. There is no new burden on content owners that didn't exist before the case, nor was any new burden put on creators when the DMCA was passed.
If Hackford truly believes that anything has changed in respect to whose burden it is to "police" the Internet -- a vaguely creepy and Orwellian thought -- then I think it's pretty clear that he doesn't know what he's talking about on any level.
And that's pretty scary for a guy who is the president of the DGA.
For our members who work on smaller independent or low-budget films, the burden will be even greater because they do not have the resources at their disposal to even begin tackling this impossible task.
I'm curious whether or not Hackford is being intentionally dishonest here, or if he really doesn't know what's happening in his own industry.
Within the past year, at least one -- if not more -- companies have sprung up to offer legal services to independent producers who wish to go after people accused of illegally downloading their client's films online. It's a page straight out of the RIAA playbook. They go to a court with a copyright infringement lawsuit against 50,000 John Doe plaintiffs. They request subpoenas to reveal the identity of these downloaders and then offer to "settle" the lawsuit for $2,500 or $5,000, and it'll go away. If the person refuses to pay, this company will sue them for $150,000 plus whatever it costs in legal fees to defend yourself.
Eventually it boils down simple numbers. If you sue enough people then enough will settle just to avoid a costly lawsuit, making it a profitable business.
That emerging extortion industry, which may be even more illegal in the end (and certainly more immoral) than what YouTube is doing, exists to support those poor, defenseless independent producers that Hackford is shedding tears for.
What he claims to be an impossible task is on the verge of becoming a very profitable niche business for specialty law firms. Any movie that bombs can go to one of these vulture companies, sue 50,000 people who downloaded the flick via BitTorrent or whatever, and actually make more money through lawsuits than they lost at the box office.
Just so that we're perfectly clear on the matter, I don't condone piracy. Anyone who downloads a movie or TV show illegally deserves to be sued and held accountable for their actions. But there is a right way and a wrong way to go about that, and the RIAA playbook is clearly on the wrong side.
We fear that the precedent established in this ruling, if not overturned by the appeals court, could result in a drastic rising tide of Internet theft that could decimate our members' livelihoods, their pension and health plans, and their ability to continue creating the content that is beloved by people all over the world.
One problem with that statement is that this court didn't set a precedent. Technically speaking no district court can set a precedent which other courts must follow, only an appeals court and the Supreme Court can do that. If the appeals court upholds this ruling, they will be the ones setting precedent.
Another, more significant problem, is that this isn't the first time a ruling as gone down this way.
In a nearly identical case, a video sharing service called Veoh was sued by IO Group for copyright infringement, over videos that Veoh users uploaded that belonged to IO Group. Veoh requested summary judgment, just as YouTube did in this case, arguing that they were immune from civil suits under the "safe harbor" clause of the DMCA. Same reason for the lawsuit, same arguments for and against. That was lawsuit was filed in 2006 and ended in 2008 when the judge granted Veoh's request for summary judgment.
Just like what happened with YouTube this past week.
There is no significant difference between these two cases. If any precedent exists on the matter, it's that video sharing sites like YouTube and Veoh are immune from copyright infringement lawsuits so long as they obey the DMCA. And if most of the district courts and appeals courts agree, its unlikely the Supreme Court will even take the case at all.
That people like James DeLong and Taylor Hackford think the world is ending because of this recent ruling, and that it sets some new wild west precedent where people can steal videos at will and get away with it, shows that many people siding with Viacom (indeed, Viacom itself) have a lot to learn about the DMCA and how it's supposed to work. The DMCA exemption has been repeatedly tested and upheld in courts for years, as recently as 2008, and again this past month.
Here is the full, unedited statement:
"The DGA is troubled by the judge's decision to shield copyright-infringing websites based on his interpretation of the safe harbor provision of the Digital Millennium Copyright Act.
"We are extremely concerned about the implications of the judge's decision, which permits those who engage in or enable Internet theft to build sites using illegal content provided the site operators promise to take the illegal content down later if they are caught and notified. This decision means that content creators and copyright holders will carry 100% of the burden of policing the Internet and pursuing takedown measures for every instance of copyright infringement that they are able to find. Every content owner will need to search the Internet constantly and forever - a never-ending task of Sisyphean proportions. For our members who work on smaller independent or low-budget films, the burden will be even greater because they do not have the resources at their disposal to even begin tackling this impossible task. They will have no option but to watch helplessly while websites that are predicated on copyright infringement make money off the fruits of their labor.
"The content created by our members takes months or years of work and millions of dollars of investment to come to life. We fear that the precedent established in this ruling, if not overturned by the appeals court, could result in a drastic rising tide of Internet theft that could decimate our members' livelihoods, their pension and health plans, and their ability to continue creating the content that is beloved by people all over the world."