PK WSJ Response Letter: ‘Notice and Take Down’ Lets Web Services Exist
PK WSJ Response Letter: ‘Notice and Take Down’ Lets Web Services Exist
PK WSJ Response Letter: ‘Notice and Take Down’ Lets Web Services Exist

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    Earlier today, I noted our reply letter that the WSJ recently published. Since the WSJ online is subscription based access, here is the text of the letter:

    'Notice and Take Down' Lets Web Services Exist

    Your Dec. 1 editorial, “Google Search: 'Copyright'” missed crucial elements of the Digital Millennium Copyright Act (DMCA) and the concept of fair use when it comes to the posting of copyrighted material online.

    The content industry fought very hard and largely won what it wanted in the DMCA. The trade-off for infringing content hosted by an unknowing service provider was essentially this: no liability for the service provider that expeditiously removes the infringing content after the copyright holder has been notified. This “notice and take down” provision allows most automated Web services like YouTube to exist. The take-down provisions effectively place the responsibility on copyright owners to actively identify infringement and notify the host services, all themselves. That's a fair trade considering they also have the weight of civil and criminal copyright law in their corner. It would be unworkable for YouTube or any other organization to have someone sit behind the curtain and approve every submission of copyright-able works.

    There are legitimate and legal uses for posting (typically small portions of) copyrighted material, including for public comment and criticism — guaranteed to the public by a limitation on copyright called fair use. For purposes of fair use, someone posting material online does not need an author's permission; imagine if a movie critic needed to ask a studio's permission to critique a movie demonstrated by showing a clip. Google's service indexes hundreds of thousands of pages of book texts, all to provide brief passages of context in response to a searcher's specific query. Unless a book is in the public domain or otherwise permitted by the publisher, Google Book Search does not provide the entire text of a book online. Using just enough of a book to show the results of a search is a perfect example of fair use.

    Your editorial advocates an unacceptable culture of control. Google and YouTube exist despite individual infringers, not because of them. Your version of rigorous copyright enforcement would prevent tech innovators like Google from giving users new ways to create and access content, while providing no new incentives for content innovators to create. Fair uses of home taping didn't kill music, video recording didn't kill TV or movies, and Google and YouTube aren't going to do it either. These are legitimate fair uses of copyrighted works for which our society is better off, not worse.

    Gigi B. Sohn
    President, Public Knowledge
    Member, Digital Freedom Campaign