Farting in Public Redux: Bad Advice, How Google “Lost Poland” and Other Wishful Thinking

Check out the great user generated content on YouTube: Farting in Public. No wonder they want the Viacom material.

Here's the strong comeback from Google's legal team per their letter to the Washington Post:

Viacom's lawsuit is an attack on the way people communicate on the Web and on the platforms that allow people to make the Internet their own. In the Digital Millennium Copyright Act, Congress struck a careful balance between the rights of the copyright holder and the need to protect the Internet as an innovative communication frontier, not as another venue for litigation.

Content-hosting sites such as YouTube, Craigslist and MySpace that want to take advantage of the DMCA's safe harbors must promptly remove infringing content if the copyright owner so requests, giving owners a quick remedy that doesn't require going to court. Copyright owners, in return, have the responsibility to identify infringing material they want removed. Viacom's lawyers helped craft this law but apparently don't like it, after all. They want to shirk the responsibility Congress gave them.

Placing that burden on hosting platforms would turn the DMCA on its head.

Viacom is attempting to rewrite established copyright law through a baseless lawsuit. In February, after negotiations broke down, Viacom requested that YouTube take down more than 100,000 videos. We did so immediately, working through a weekend. Viacom later withdrew some of those requests, apparently realizing that those videos were not infringing, after all.

Though Viacom seems unable to determine what constitutes infringing content, its lawyers believe that we should have the responsibility and ability to do it for them. Fortunately, the law is clear, and on our side.

MICHAEL KWUN
Google, Managing Counsel, Litigation

Oh, tell me that you have more than this, please. Tell me you didn't bring a knife to a gunfight?

So the first faux argument in Google’s response is the usual call of Willard for his little friends. Summon the mob, bring the axe handles and the sheets, fire up the tar for the burning crosses. The thing that the Lessig crowd simply does not (or maybe cannot afford to) understand is that trying to summon the mob against a record company or a television company is still summoning the mob against copyright owners.

Artists are copyright owners. Every artist wants to either keep control over their copyrights or get back that control if they ever gave it up. Artists may choose to give away their works--but THEY choose. When Google attacks one copyright owner and takes away that choice, they attack all copyright owners. And if they can get away with the YouTube fiasco, they can get away with anything.

Google wants to put itself in the same category as MySpace and Craigslist. Myspace I can kind of understand because it looks a tiny bit similar to YouTube (just a tad since they built thier business of the backs of MySpace artists), but Craigslist? Craigslist? Come on!

Calling YouTube a "web hosting" company avoids the central point of the case: How can Google's interpretation possibly be the law? When I talk to Google fans about this, I find the same departure from reality that I saw during the Napster case and the Grokster case. The central theme of those cases and the Google case are the same.

However much the Dedicated Followers of Lessig may have liked Napster, Grokster, Morpheus and now YouTube as tools to destroy the creative community, it all comes down to the same thing. These are copyright infringement engines. It simply cannot be the law that "fair use" covers "sharing" other people's works--against their will--with millions upon millions of your "closest friends". But considering the source, what do you expect? These people are so far away from the creative community that they probably think Protools is some kind of dildo.

And it also cannot be the law or a “carefully balanced” interpretation of the DMCA that copyright owners must spend millions upon millions of dollars watching every online company and sending a continuous stream of takedown notices with NO obligation on the part of the online company to filter or obtain licenses.

Starting with Napster, I watched and listened to highly educated adults buy into what in retrospect for them are really silly arguments that cannot possibly have been true or reasonable. Some of them came to their senses the hard way, and for some in a very hard way indeed.

I can't help but believe that history will repeat itself yet again as Google tries to impose its interpretation of a “careful balance” in the DMCA on the creative community (is that kind of like “fair and balanced” on Fox News?). We heard about this “careful balance” in Napster and particularly in the EFF’s brilliant performance of the losing argument in Grokster. You can polish up EFFluvia, but it’s still EFFluvia, and just because Google say it’s so don’t make it so.

Careful balance fan Fred Von Lohman, Grand Mystic Knight of the EFFluviati, notes in his carefully balanced “Deeplinks” blog (is that a parody of Saturday Night Live’s “Deep Thoughts”?):

“On behalf of MoveOn.org and Brave New Films, EFF and Stanford's Fair Use Project today filed a lawsuit against Viacom for improperly issuing a DMCA takedown notice to YouTube over "Stop the Falisiness," a humorous video built around clips from The Colbert Report.”

Ah, let’s see. That would be the carefully balanced Stanford Fair Use Project funded by…Google, right? I think the Fredster omitted that little carefully balanced fact. So Google is using investment in its Fair Use Project to launch lawsuits against plaintiffs in litigation in which…Google…is a defendant. Hmmm. There's some "academic freedom" for you. I’m not sure that even John D. Rockefeller had that much carefully balanced brass.

(“Google forges ahead in its misssion to codify its ‘right’ to perpetuate a $150 billion market cap business model based on selling ads against content it has not compensated IP owners for and that it has no explicit legal right to exploit commercially. Google has funded, to the tune of $2 million, Stanford University's Center for Internet and Society to ‘change the way content owners approach fair use issues.’")

I’ve never seen EFF disclose who funds EFF, but why would I not be shocked to learn that one of their carefully balanced backers is…Google.

I ask myself what is the common theme through all of these cases? Sure, there are commonalities in the niceties of copyright law here and there, the same losing themes again and again. Well-argued from a pure sophist's point of view—but losing. Having the losing side is one of the carefully balanced commonalities in the anti-artist crusade.

But boiled down to the lowest common denominator? They want to take our creations and they don't want to pay for it. They think they can just take the fruits of our labors, and make us play "notice and shakedown" (a great phrase I must credit to Rick Carnes, President of the Songwriters Guild of America in an abundance of careful balance). A huge corporation is picking on artists, and thinks that artists are weak. I don't know how many times these Valley Boys have to fail before they get the idea.

When the dust settles and discovery is complete in the Google case, I have a feeling that the story that will come out of the emails and statements will be something similar to the story of Grokster. At some point someone sat down with the YouTubes and helped them structure a copyright infringement machine that would appear to fit in the cracks of the Copyright Act enough that they wouldn't all go to jail if it turned out not to be a defensible fit. I have a pretty good idea of who that someone was, but I will hold my thoughts to myself for the moment, noting only that there is a crime/fraud exception to the attorney-client privilege.

A friend of mine who is a long time district attorney once said of criminals that if they genuinely seek forgiveness and wish to make contrition, the law should be merciful and accept their bona fides. But--if the criminal does not seek to make amends, then God help them.

Google has a chance to admit their mistakes—for a few more weeks, I would guess. After that, it’s going to get increasing more difficult to back out. I have seen no evidence that they intend to do so, but if they do, we should welcome them into the creative community as a reliable partner. I’m quite serious about that. I think Google could be a great partner. But good partners don’t steal from each other.

If Google doesn’t want to give up this charade, and it’s very likely wishful thinking to hope that they might, then we will fight on. Viacom was first, there will be others.

I'm reminded of Winston Churchill's speech to the Canadian Parliament in 1941:

"When I warned [Vichy France] that Britain would fight on alone whatever they did, their generals told their Prime Minister and his divided Cabinet, 'In three weeks England will have her neck wrung like a chicken.' Some chicken; some neck."

There’s some careful balance for you.

I also have to note the faux indignation in Google’s carefully balanced letter to the Washington Post signed by Mikey the Dupe, one of Google's many litigation counsel (must not have been important enough for David Drummond, Google's General Counsel--or is he distancing himself already?):

"We did so [took down Viacom's material] immediately, working through a weekend."

Now what on Google Earth possessed the PR hacks at Google that they should hang that comment on poor little Mikey, Boalt Hall class of 98? I'm not going to embarrass the young lawyer further by posting the link to his several sophomoric web pages in which he pours his heart out about his law school career, but let me give you a tip, friend: When you get involved in international copyright litigation, time to take that crap down. And be very, very careful what your boss gets you to sign your name to, chump.

But oh, gee, little Mikey had to work through a weekend to stop taking a free ride on other people's copyrights. Golly, that's really tough.

I have two words for you, dude: Hump gear.

When you've hauled a trap case up five flights of stairs, or toured in Canada in the snow when all you could see on the road from Edmonton to Saskatoon was a little black line of slightly melted ice for a highway, or settled your door with mafia club owners who commenced the discussion by having a couple of Bandidos put a sawed-off on top of the table with a .357 trained on your gut from under the table--you'll understand why we don't really care if you had to work through the weekend, and more importantly why Google ain't all that.

Hey Mikey--anyone who is a working musician has had a life of roadblocks, insults, discrimination and people trying to steal from us, and frankly you ain't no different that guys who steal vans from bands. In fact, you're worse. You've GOT money.

Trust me about one thing--you're lucky you are not dealing with us on a personal level. When (as you post on your website) you had your panties in a bunch over the trials and tribulations of being a 1L at Boalt Hall (the UC Berkeley law school), we were learning to survive in a world you can't handle. It's not Boalt, but the brotherhood of the road might learn ya a thing or two about simple truths like right and wrong. And true partnership.

And at the end of the day, that is what this case is about. Right and wrong. Is it right or wrong to permit a giant corporation to place extraordinarily unreasonable burdens on every copyright owner, big and small? Is it in keeping with the traditions of democracy that artists of few means should be forced to pursue "notice and shakedown" claims against the Leviathan of Mountain View?

Others are starting to take notice: Hey Mikey! You're on the cover of Business Week! "Is Google Too Powerful?" How's that grab you, honey?

So perhaps Google's arguments will keep them out of jail, at least for copyright infringement. Not so sure about the shareholder suits and the Sarbanes Oxley investigations that are sure to follow a loss on the copyright claims.

There's a perfect example of filtering out there right now: iTunes. You don't hear them carping about some extraordinarily tortured interpretation of the Copyright Act.

Hey Mikey! Here's a filter for you: Get a license.

Maybe you can get one for those attention starved folk who brought you Farting in Public.