YouTube and the Law: What it IS or What it WILL be?
(photo: The Kreation of Adam by Krystian Schneidewind)
Culture and consumers precede the law. They rarely, if ever, conform themselves to the needs, interests and desires of business. Culture and consumers govern business. Business does not govern them.
The law follows culture. As we noted in Disputing Humor: Comedy, Folkways and the Internet, "the law" is not just a set of rules, but a life condition "in which [people] are carriers of rights and duties, privileges and immunities."
No formal structure supporting the system of law need be visible. . . Law can be found any place and any time that a group gathers together to pursue an objective. The rules, open or covert, by which they govern themselves, and the methods and techniques by which these rules are enforced is the law of the group. Judged by this broad standard, most law-making is too ephemeral to be even noticed. /*
In other words, we govern ourselves more or less naturally, until a conflict within the group arises. When that happens, the group is "forced to decide between conflicting claims [and the] law arises in an overt and relatively conspicuous fashion. The challenge forces decision, and decisions make law." Id.
There are 87 comments over at the Volokh Conspiracy -- many of them pretty heated -- about the practice of posting (or linking to) YouTube videos. When there's this much dissent and passion, what the law will be is anybody's guess.
We also recently noted that the RIAA is waging a computer-sleuthing and intimidation campaign against its own customers in an effort to stop illegal downloading (apparently going so far as to notice the deposition of a ten year old girl). When Goliath is going after Davy as if Davy were carrying a tactical nuclear weapon instead of a sling shot, cooler heads are not prevailing.
Enforce Your Rights by Suing Your Market or Adjust Your Business Practices to Changing Times?
Taking on just one of the legal issues raised by the 87 Volokh commenters is good only for people who like to tinker with the law (lawyers). It is always bad for people who want to make a profit from selling stuff to the public.
Take YouTube. One of the commenters over at Volokh made this small but important point -- a "point of law" that could consume the energy of teams of well-paid lawyers for years if not decades.
You "link" to the YouTube clip, but the clip itself is stored on some YouTube server. The "link," however, plays directly from this blog. Is this different than (1) a link that opens a new YouTube window (requiring the additional step of the user clicking "play" from YouTube's website)? If so, why?
I think we'll all agree that it is different than, for example, (2) a blogger providing the following instructions:
"If you'd like to watch the video, google these terms: "Herbie Hancock" and "One Night with Blue Note." Then click on "I'm Feeling Lucky" and watch the video."
So ... is the embedded YouTube link more similar to (1), or is it more similar to (2)? Does copyright law have anything to say about this?
When you post a YouTube video to your blog what you are really doing is cutting a rectangular window in your blog template, letting the YouTube video shine through. If YouTube "takes down" the video, it will no longer "show" through the window you've cut for it.
Question. Is this infringement or contributory infringement? You have an hour. You may begin writing your answer . . . . . NOW.
Listen, lawyers love questions like this. They allow us to ply our trade at its most creative -- to push the envelope or even to break the mold. There's nothing we like more than asking ourselves and our colleagues whether the laws enacted, interpreted and enforced when copying machines were the primary means of reproduction should apply to the practice of virtually cutting holes in blog templates for videos to play through.
Do Columbia and Warner Brothers want to spend their creative talent, business acumen and cold hard cash trying to maintain the past when the present and the future are so full of opportunity?
Listen. The producers and distributors will find a way to make a living in the new Millennium. They're very very good at that. They will, however, do so much more quickly if they focus on serving their customers by delivering a superior product. Serving customers with a summons and complaint is applying a quill pen to a problem that requires a laser gun.
UPDATE FROM CITIZEN MEDIA LAW PROJECT Embedded Video and Copyright Infringement answers most the questions raised here and over at Volokh in favor of the poster.
*/ See, Weyrauch and Bell, Autonomous Lawmaking: The Case of the "Gypsies" (1993) 103 Yale L.J. 323 (1993) quoting Thomas A. Cowan & Donald A. Strickland, The Legal Structure of a Confined Microsociety (University of California, Berkeley Working Paper No. 34, 1965). The Weyrauch book on Gypsy Law can be found here.
