Columbia law professor Tim Wu has a brilliant essay at Slate entitled Does YouTube Really Have Legal Problems? How the Bell Lobby helped midwife YouTube. I say "brilliant" because Professor Wu goes beyond the hype around YouTube as one of the 'Net's current infringement bogeymen, and emphasizes the fascinating role reversals and strange-bedfellow context behind GooTube's invocation of Section 512 of the DMCA as its shield in the copyright wars. First, Professor Wu offers some historical perspective concerning the birth of Section 512, the DMCA's safe harbor against liability for third party infringement:
This summer, Sen. Ted Stevens, R-Alaska, earned the bemused contempt of geeks everywhere when he described the Internet as "a series of tubes." But back in 1995, Hollywood was insisting that the Internet be characterized as "a bookstore." And a bookstore, unlike a series of tubes, breaks the law if it "carries" pirated novels. So too, Hollywood urged, Internet companies should be liable if they carry any illegal materials, whether the companies know it or not.
Had that view prevailed, there would probably be no YouTube today, and also no free blog sites, and maybe not even Google or Web 2.0. What venture capitalist would invest in a company already on the hook for everything its users might do? But, in one of the lesser-known turning points in Internet history, Hollywood never got its law. Its unstoppable lobbyists ran into an unmovable object: the Bell companies, who own those "tubes" over which the Internet runs. In the mid-1990s, fearing a future of liability, the Bells ordered their lobbyists to fight Hollywood's reforms, leading to one of the greatest political struggles in copyright history. (This paper provides a history of this and other struggles.)Hollywood employs legendary lobbyists, like Jack Valenti, but when they ran into the Bells, it was like Frazier meeting Foreman. ...
He goes on to aptly characterize the central role this provision has come to play in the legal and economic life of the Internet: "[Y]ou might call §512 the Magna Carta for Web 2.0."
Finally, Professor Wu discusses how the choices Section 512 offers to copyright holders gives rise to a new phenomenon, "tolerated use:"
What's really interesting is that the content industry actually likes §512 more than anyone will admit. The notice-and-takedown system gives content owners the twin advantages of exposure and control. When stuff is on YouTube, the owners have an option. They can leave it posted there, if they want people to see it, and build buzz. But they can also snap their fingers and bring it all down. And for someone who is juggling her desire for publicity against her need for control, that's ultimately a nice arrangement.
Stated otherwise, much of the copyrighted material on YouTube is in a legal category that is new to our age. It's not "fair use," the famous right to use works despite technical infringement, for reasons of public policy. Instead, it's in the growing category of "tolerated use"—use that is technically illegal, but tolerated by the owner because he wants the publicity. If that sounds as weird as "don't ask, don't tell," you're getting the idea. The industry is deeply conflicted about mild forms of piracy—trapped somewhere between its pathological hatred of "pirates" and its lust for the buzz piracy can build. ...
The upshot is, as YouTube goes mainstream, copyright's etiquette rules are becoming clearer. Yes, these sites can make it easier to infringe copyright. But so long as that's not the principal aim of your company, you have more breathing room today than you once did.
In the wake of the U.S. Supreme Court's ruling in MGM v. Grokster, it remains dicey to put much stock in such "breathing room" and "tolerance." Consistent with a past observation of Fred von Lohmann's, as norms develop around the propriety of certain activities and whether they are on balance societally salutary or detrimental, it is less than ideal to leave the determination of whether those activities are lawful and/or permissible to a decidedly interested party. Instead, the "tolerated use" trend Professor Wu has flagged in connection with Section 512 is precisely the sort of thing that can (and I think eventually will) prompt courts and other lawmakers to convert "etiquette" into law.
For related discussion, see: