For those of you who think that Viacom's $1B lawsuit against YouTube is only about money, you might want to take a look at yesterday's compelling piece by former constitutional and civil rights litigator Glenn Greenwald, which uses a four minute MSNBC clip of Washington DC pundits engaging in a giggle-fest about whether Karl Rove will be asked to testify about the firing of eight United States attorneys. Greenwald uses the clip, which was first posted on YouTube, as an example of how the DC press not only refuses to ask hard questions of the current administration, but also how it pretends to know what the “American people” want (no investigations into wrongdoing), even though the polling around the 2006 election showed the exact opposite. Greenwald's powerful undressing of the Washington punditry demonstrates convincingly how a press that becomes too comfortable with the status quo can wreak havoc on a functioning democracy.
The Greenwald post has already kicked off a serious online discussion of the role of the press in a democratic society, but if Viacom gets its way, similar conversations may never take place. A four minute clip of a copyrighted show posted on YouTube, whether or not it starts an important national conversation, is currently subject to notice and takedown under the DMCA, and if Viacom wins, will be forced to be filtered out by YouTube. To me, the critical question is not whether posting the MSNBC clip is technically a “fair use” (and I think that under current law, it might be a stretch to prove it, even if one had the resources to defend themselves in a lawsuit). The right question to ask is whether copyright law has gone too far (or even violates the first amendment) when discourse on important issues can be halted even though the copyright owner has suffered no harm (and perhaps has even benefited) from the posting.
There is little doubt that posting portions of TV shows has become to commentators and journalists what simple quotation was in the non-virtual world, only much more powerful, because it allows the public to see first hand what the commentator is writing about. Will copyright law put an end to some of the most revealing (and indicting) news analysis of our time?