[A2k] Lawrence Lessig in the New York Times (entire article): Make Way for Copyright Chaos

[Thiru Balasubramaniam]

March 18, 2007
Op-Ed Contributor
Make Way for Copyright Chaos
By LAWRENCE LESSIG

Berlin

LAST week, Viacom asked a federal court to order the video-sharing
service YouTube to pay it more than $1 billion in damages for some
150,000 videos that Viacom claims it owns and YouTube users have
shared. =93YouTube,=94 the complaint alleges, =93has harnessed technology t=
o
willfully infringe copyrights on a huge scale,=94 threatening not just
Viacom, but =93the economic underpinnings of one of the most important
sectors of the United States economy.=94

Yet as federal courts get started on this multiyear litigation about
the legality of a business model, we should not forget one prominent
actor in this drama largely responsible for the eagerness with which
business disputes get thrown to the courts: the Supreme Court.

For most of the history of copyright law, it was Congress that was at
the center of copyright policy making. As the Supreme Court explained
in its 1984 Sony Betamax decision, the Constitution makes plain that
=93it is Congress that has been assigned the task of defining the scope
of the limited monopoly,=94 or copyright. It has thus been =93Congress that
has fashioned the new rules that new technology made necessary.=94 The
court explained that =93sound policy, as well as history, supports our
consistent deference to Congress when major technological innovations
alter the market for copyrighted materials.=94 In the view of the court
in Sony, if you don=92t like how new technologies affect copyright, take
your problem to Congress.

The court reaffirmed this principle of deference in 2003, even when the
question at stake was a constitutional challenge to Congress=92s
extension of copyright by 20 years. Challenges are evaluated =93against
the backdrop of Congress=92s previous exercises of its authority under
the Copyright Clause=94 of the Constitution, it wrote. Congress=92s
practice =97 not simply the Constitution=92s text, or its original
understanding =97 thus determined the Constitution=92s meaning.

These cases together signaled a very strong and sensible policy: The
complex balance of interests within any copyright statute are best
struck by Congress.

But 20 months ago, the Supreme Court reversed this wise policy of
deference. Drawing upon common law-like power, the court expanded the
Copyright Act in the Grokster case to cover a form of liability it had
never before recognized in the context of copyright =97 the wrong of
providing technology that induces copyright infringement. It announced
this new form of liability even though at precisely the same time
Congress was holding hearings about whether to amend the Copyright Act
to create the same liability.

The Grokster case thus sent a clear message to lawyers everywhere: You
get two bites at the copyright policy-making apple, one in Congress and
one in the courts. But in Congress, you need hundreds of votes. In the
courts, you need just five.

Viacom has now accepted this invitation from the Supreme Court. The
core of its case centers on the =93safe harbor=94 provision of the 1998
Digital Millennium Copyright Act. The provision, a compromise among a
wide range of interests, was intended to protect copyright owners while
making it possible for Internet businesses to avoid crippling copyright
liability. As applied to YouTube, the provision immunizes the company
from liability for material posted by its users, so long as it takes
steps to remove infringing material soon after it is notified by the
copyright owner.

The content industry was a big supporter of the Digital Millennium
Copyright Act in 1998. Viacom is apparently less of a supporter today.
It complains that YouTube has not done enough =93to take reasonable
precautions to deter the rampant infringement on its site.=94 Instead,
the Viacom argument goes, YouTube has shifted the burden of monitoring
that infringement onto the victim of that infringement =97 namely,
Viacom.

But it wasn=92t YouTube that engineered this shift. It was the Digital
Millennium Copyright Act. As the statute plainly states, a provider
(like YouTube) need not monitor its service or affirmatively seek facts
indicating infringing activity. That burden, instead, rests on the
copyright owner. In exchange, the law gives the copyright owner the
benefit of an expedited procedure to identify and remove infringing
material from a Web site. The provision was thus a deal, created to
balance conflicting interests in light of the technology of the time.

Whether or not that balance made sense in 1998, Viacom believes it no
longer makes sense today. Long ago, Justice Hugo Black argued that it
was not up to the Supreme Court to keep the Constitution =93in tune with
the times.=94 And it is here that the cupidity of the court begins to
matter. For by setting the precedent that the court is as entitled to
keep the Copyright Act =93in tune with the times=94 as Congress, it has
created an incentive for companies like Viacom, no longer satisfied
with a statute, to turn to the courts to get the law updated. Congress,
of course, is perfectly capable of changing or removing the safe harbor
provision to meet Viacom=92s liking. But Viacom recognizes there=92s no
political support for the change it wants. It thus turns to a policy
maker that doesn=92t need political support =97 the Supreme Court.

The conservatives on the Supreme Court have long warned about just this
dynamic. And while I remain a skeptic about deferring to Congress on
constitutional matters, this case is a powerful lesson about the costs
of judicial policy making in an area as complex as copyright. The
Internet will now face years of uncertainty before this fundamental
question about the meaning of a decade-old legislative deal gets
resolved.

No doubt the justices are clever, maybe even more clever than Congress.
But however clever, it=92s hard to believe that their input is worth the
millions in economic value that will be wasted long before they
announce their decision.

Lawrence Lessig, a professor of law at Stanford, is a fellow at the
American Academy, Berlin.



---------------------------------
Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
voice +41.22.791.6727
fax +41.22.723.2988
mobile +41 76 508 0997
thiru@keionline.org