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

[Jeff Williams]

professor Lessig and all,

  Nicely stated and reviewed here professor.  Well done.

  I believe that congress is going to be much slower however
than the courts in changing copyright provisions in the 1998
Digital Millennium Copyright Act.  And in fact depending on
how this case is decided, this Act may be struck down or
have some provisions of it recommended to be modified, and
it may be that the "Cleverness" of the supremes, will be
tested and be significantly evident indeed.

  Therefore I believe this is an excellent case for the supreme
court to hear.


Thiru Balasubramaniam wrote:

> 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=
 to
> 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 th=
at
> 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
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