YouTube Viacom the Net and Freedom

I will blogging a lot about copyright copyleft remix commons and mashups over the next two weeks in light of the course I am running in HUMlab on 12 April (see entry below). Today I wanted to inscribe a few thoughts on the case that is forming up YouTube vs Viacom. This will be an important case, if it goes that far. Because of the huge sum involved (over 1 billion US dollars) it is more likely that it is the beginnings of a bargaining process. This process will allow the industry groups, here represented by Viacom (owner of MTV -serious financial problems at the ol´ Empty-V at the moment - and Nickelodeon) to bypass law reform in the legislature (Congress in the USA) and use the courts as a arena for precedent. I quote from Lessig:

This case — if it is really intended as a law suit and not a move in a
bargaining game — should be decided on the meaning of s512(c). The question will be whether YouTube has the “ability to control” uploads before they are identified as infringing. Viacom complains that YouTube shifts to it the burden of identifying infringing content. Not true. The DMCA does. Until at least Congress amends it, or the Supreme Court adds some new common law of copyright to the statute books

This is important for everybody who uploads and shares content on to the Net. The opening shots in the public debate were fired by Micheal Fricklas, general counsel of Viacom, yesterday:

YouTube defends itself from copyright infringement based on one narrow slice of the copyright act: protecting service providers who store copyrighted material solely and simply "at the direction of a user." This defense is available only to users who do not have "knowledge" of infringement or who "expeditiously" take down material when they find out they are infringing a copyright. The defense is not available to someone who "derives a financial benefit" from copyrighted material he stores if he has the "right and ability to control" it.

The case for Viacom is based on authorship, a very old concept of authorship, but one that is current due to the nature of copyright law. To cut a long story short, I again quote Fricklas (2007):

Protecting intellectual property spurs investment and thereby the creation of new technologies and creative entertainment.

And then John Stuart Mill (1848)

We cannot, indeed, foresee to what extent the modes of production may be altered, or the productiveness of labour increased, by future extensions of our
knowledge of the laws of nature, suggesting new processes of industry of which
we have at present no conception. But howsoever we may succeed in making for
ourselves more space within the limits set by the constitution of things, we
know that there must be limits.

The future of shared content will be affected by Viacom vs YouTube, even if the client is outside the United States. To illustrate this I can mention that I got a message from Tom of Myspace (166388562 friends....."Send me a message if you're confused by anything"....the Malboro man of the Myspace generation) stating that Myspace UK has started but all rules are US copyright orientated. The content is stored in the US:

"...my lawyers told ME what I have to tell YOU: now that MySpace is looking more UK-ish, you should know that we are still running our site from the US, all your data still resides in the US, and that MySpace’s data management practices are still governed by US laws."- Tom

Borders falling... New are rising. Nationality is a genre.