More on YouTube and Viacom

There’s another disturbing aspect to the Viacom’s lawsuit against Google, besides the privacy implications of the information the judge has ordered released.

A major point in the copyright-infringement lawsuit says that Google should have done more to prevent people from storing and sharing copyrighted material. Service providers have, until now, mostly been insulated from liability for the data stored in their networks. Courts have consistently held, for example, that it’s you, not the provider of your Internet service, who is responsible for ensuring that your children don’t have access to web sites that you’d rather they not see.

The most famous exception to that is Napster, which was shut down by a court order. But that was a very different case — the argument then had been that the primary use of Napster was to share copyrighted material in violation of the copyrights. The judge agreed, in that case, that despite Napster’s claim to the contrary, the whole setup was designed to promote copyright infringement.

The Viacom/Google case is not like that at all. It’s quite easy to show that the majority of the material on YouTube is, in fact, not infringing, and, therefore, that YouTube clearly has a legitimate primary purpose. That leaves the court with the question of how much Google must do to discourage or prevent infringement. Until now, the answer has been “Not much.”

If Viacom wins this billion-dollar lawsuit, there could be disastrous consequences to open data sharing, free speech, and fair use on the Internet. The Associated Press is already trying to place ridiculous limits on citations from its news items (five words, according to some reports!), and the state of Oregon recently backed down from an attempt to declare its state laws — the public laws that everyone must know and follow — to be copyrighted material that could not be posted.

Many people post copyrighted photos to their blogs — they shouldn’t, but they do. Many blogs, including this one, sometimes use fairly lengthy quotes from sources — some quote entire articles, and don’t always attribute them. Blogspot, like YouTube, is owned by Google. So is Picasa, a photo-sharing site. An expensive settlement with Viacom in this case will certainly make Google worry about what it allows on its other sites? Other service providers, such as Yahoo! and the various social networking sites will have to worry as well.

The problem, of course, is that the companies’ responses won’t be limited to stopping wholesale copyright infringement. To avoid ruinous settlements, they’ll have to go too far in the other direction, ultimately limiting fair use and assuming infringement where none exists. There’ll be serious restrictions on what can be posted, and there’ll be a chilling effect that goes beyond what’s actually prohibited.

None of us — in the end, not even companies such as Viacom — will benefit from the squelching of open communication, information, sharing, artistic freedom, and free speech that would result from such a decision.

That’s why I hope they do not win this one. Viacom has a right, if they choose to exercise it, to demand that their protected material not be posted wholesale. They do not have a right to demand that Google or any other content host police it for them.