If Even Viacom Can Accidentally Infringe, Does Strict Liability For Infringement Make Sense?

Video bloggers VLOG Brothers posted this entry about SpikeTV, a subsidiary of Viacom, violating musician Jonathan Coulton‘s Creative Commons License for one of his songs (I’ve included the video blog below). Briefly, Coulton has released a video of his song Flickr under a Creative Commons license allowing noncommercial use and requiring attribution. SpikeTV grabbed the video and played commercials before it and associated with while playing. Since this is exactly the sort of behavior SpikeTV’s owner Viacom has sued Youtube about, many have delighted at this apparent expression of Viacom hypocrisy and demanded that Viacom pay Coulton damages (either $37 based on commercial value of online advertising, or much higher based on how Viacom has argued the courts should assess damages against Youtube).

In the parlance of today, I’d rather focus on this as a “teachable moment” than as an opportunity to shame Viacom (who, given the choice, would prefer to simply pay $37 and forget the whole thing). Here are a few key takeaways I would hope policy makers (and maybe even Viacom) would learn from this.

Not all who violate copyright are “pirates.” One of the biggest problems in debating copyright policy is the idea pushed by copyright maximalists that you have law abiding citizens on one side and pirates on the other — because everyone should be able to tell when they are “stealing” something. But reality doesn’t work that way, particularly in a world of multiple and complex licensing terms and rapidly evolving business models. It is embarrassing for Viacom that SpikeTV messed up. But the important lesson here is how easy it was for one of the largest and most sophisticated content companies in the world to screw up.

This isn’t an isolated case. Questions about who has rights to what and what permissions you have (and where to get them from) pop up all the time, and the effort to add additional layers of rights through such mechanisms as the proposed WIPO Broadcaster Treaty or the internet sections of the Anti-Counterfeiting Trade Agreement (ACTA) make it easier and easier to violate someone’s copyright. To take one recent example, consider the current fight between UCLA and Video Furnace over whether UCLA’s license includes the right to allow students to watch educational films via a secure system online. Is UCLA a “pirate” if it honestly believes its license permits this and acts accordingly? Are UCLA students “pirates” if they follow the University instructions and watch course videos online?

Judges and policymakers with little experience in the online world routinely accept the assumption that it is easy to know when you are violating someone’s copyright and that this therefore justifies strict liability and draconian measures. Viacom’s argument in the Youtube case is based entirely on the idea that youtube “obviously” knew about copyright violations and therefore was delberately profiting from them. But if Viacom’s own subsidiary can screw up so easily, does it really make sense to hold unsophisticated users and innovators to such a strict standard?

Strict liability and draconian responses are a real bad idea.  Any rational person would have a tough time going from SpikeTV’s screw up to saying that SpikeTV builds its business on piracy. But proposals for things such as Three Strikes (aka “Graduated Response”), which would require an ISP to shut off someone’s internet access based on three allegations of infringement are based on the mistaken assumption that we can tell at a glance with certainty that someone is a “pirate” and menace to society and thus needs to get their access to critical infrastructure turned off. Likewise, content companies have urged courts to find willful infringement or inducement from a handful of incidents or emails.

Would it make any sense to conclude that Viacom, or just SpikeTV, are willful pirates? If we found another two cases where any Viacom subsidiary had violated (or arguably violated) someone else’s licensing agreement, would that justify cutting Viacom off from the internet or justify a claim that they built their business through inducing infringement? I would hope not.

So why does it make any sense to embed such a ridiculous concept into law, to apply to everyone else? Sure, there are people and companies that are knowingly violating copyright. But there are a large number of people — much larger than the copyright industry lobby appears willing to admit — who are simply caught up trying to navigate an ever complicated sea of rights and who occasionally slip up or bet wrong on how to interpret these rights. The copyright industry has argued that some level of “collateral damage” ought to be acceptable. But when even a company like Viacom can slip up and become “collateral damage”, does it make sense to adopt a system with no tolerance for the complexities of the real world?

Stay tuned . . . .

Here is the original vlog about Viacom violating Coulton’s copyright.