This article written by Lawrence Lessig, a professor at Stanford University, sees Viacom’s lawsuit against YouTube as preempting Congress’ preeminent role in determining copyright law. Lessig cites to case law and the Constitution to conclude that sound policy and history support deference to Congress when major technological innovations alter the market for copyrighted material. He opines that Viacom is trying to play an end run around Congress and the 1998 Digital Millennium Copyright Act (“DMCA”) with its lawsuit against YouTube.
He explains that the DMCA was intended to protect copyright owners while making it possible for internet service providers to avoid crippling copyright liability. It achieved this result by immunizing the internet service provider from liability for infringing material posted by its users as long as it removed the infringing material upon notice by the copyright holder. According to Lessig’s article, the statute expressly places the burden of policing content on the copyright holder and not on internet service providers like YouTube. Through its complaint, Viacom is trying to shift that burden onto YouTube.
Lessig claims that Viacom, not satisfied with a Congressional statute, is turning to the courts to “update the law.” According to this article, it is not the role of the courts, but rather the role of Congress to modify the DMCA’s safe harbor provision. He states that Viacom’s lawsuit will result in the internet facing years of uncertainty in litigation and possibly undermining the intent of Congress to forge a cooperative relationship between copyright holders and online service providers through the DMCA’s statutory framework.
The underlying assumption in this article is that YouTube will have a valid defense under the DMCA to Viacom's claims of infringement. This paper will critically analyze Lessig's fundamental assumption that the DMCA provides a viable defense for YouTube. An important part of this analysis will be Lessig's argument that the court should defer to Congress. Specifically, the paper will keep in mind Congress' intent in enacting the DMCA and its balancing of the rights of copyright holders with the need to protect internet service providers who are the pioneers of an emerging means of communication.
Call#: Van Pelt Library K1401 .L47 2001
The Future of Ideas was Lawrence Lessig’s precursor to Free Culture. It is extremely tech-heavy and goes into great detail about the history and infrastructure of the internet, and the principles the internet was built upon. He describes how these values of freedom and the free interchange of ideas are being corrupted by the extreme of copyright control in our society. The drastic increase and rapid changes in technology have gotten out of hand, and there is no longer a balance between public and private goals. Our past traditions can still come into play, and changes in technology do not have to alter our law or culture. The DMCA is a good example of a flawed law put into place as a response to changing technology. The juxtaposition of the early internet to what it is now is striking – the extremes of copyright and the lack of works in the public domain have severely stifled creativity.
The three main sections of the book are a discussion of the importance of “the commons” on the internet, how to recapture online creativity and innovation, and how to stop the increasing restrictions on the internet. The first section details the need for more free resources on the internet, and a realm of works that are owned by everyone, without control to their use or access. Lessig explains in detail the principles of the GNU/Open Source movement, and how important it is to the innovation commons, moreso because large companies lack the ability to quickly adapt to technology changes. The second section illustrates how the constraints that stifle creativity on the internet need to be removed, and gives examples of online innovation such as HTML books, mp3s, and online cultural databases. The need for new models and new ideas is strong. The third section shows how the law is being manipulated by corporations, and their increasing control over web content. Copyright and patent laws have been virtually re-written to stifle the creativity of individuals, and increase the control of government-backed media conglomerates.
The book is as pessimistic as Free Culture, but does offer some ideas as to how to alter this negative process. Lessig introduces the ideas of Creative Commons and 5-year copyright term renewals, if desired by the copyright owner. He emphasizes the importance of removing special interests, and finding new ways to spread information for free. He also encourages individuals to go after large corporations if they provide false claims to copyright.
This book is extremely important because of how it details the internet and online copyright issues. It very accurately describes the foundation of the internet, and shows just how far away from that beginning things have gone.
Call#: Van Pelt Library KF2979 .L47 2004
Lessig illustrates a wide variety of specific examples, offers a thorough discussion of the important issues, and describes complex legal and economic issues in very easy-to-understand language. His mission seems to be to get this information about the current state of American copyright out to the public, since they are the ones being most harmed by the extremes of copyright control. The two main arguments are that over-extensive copyright goes against the tradition of developing new creative works from what has come before, and that the continuing extension of copyrights is unconstitutional (by ignoring the wording of the law that states a copyright will be for “limited times”). The lament is for the lack of a plentiful public domain, and how that negatively affects transformational and innovative expression. It also prevents important information from being disseminated to the public.
Much of the book centers on the Eldred v Ashcroft case which made it to the Supreme Court. The case focused on the two issues mentioned above. Lessig’s honesty about the arguments and outcome of the case are refreshing, but his overall view is pessimistic. The Supreme Court decision was against Eldred, stating that Congress can continue to extend older copyrights at their discretion, setting up a system of lobbying and corruption.
Lessig’s dislike and distrust of extremes is clear, and he does offer some ideas for a more moderate copyright culture in the US. One of the ideas expounded is Creative Commons, a way for content owners to license their own work, and start creating a richer public domain. It is now up to creators and artists themselves, since large corporations and Congress seem to be working together to restrict the public domain.
The goal of Creative Commons is to build a reasonable layer of copyright for the public to access. The licenses are simple, and easy to read - no need for a lawyer. There is a variety of licenses offered, so the creator can choose what they want; somewhere between “all” and “no rights reserved”. It gives copyright owners a wider realm of freedom, but also creates a world of content that others can use and build on.
Call#: Van Pelt Library K1401 .L47 2001