Viacom’s Take on Fair Use
Viacom’s Take on Fair Use
Viacom’s Take on Fair Use

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    Viacom likes fair use. (Who knew?) That observation from Michael Fricklas, Viacom's general counsel, was one of a string of ironies, omissions and misinterpretations that cropped up at a New York conference Monday sponsored by The Deal, a financial news organization.

    Fricklas, of course, is the legal force behind Viacom's $1 billion suit against YouTube for copyright infringement. It was therefore somewhat shocking to hear him say that “litigation is a poor way to resolve disputes,” particularly for a suit that Fricklas expects won't get heard until 2009. On the other hand, lawsuits are useful because they help get their side of the issues out, as opposed to those people organized by law professors and people who love Napster's free music “who had center stage.”

    Instead, Fricklas prefers a combination of automatic filtering and appreciation for fair use is a better set of tools for dealing with those pesky videos that pop up from time to time. The problem is, of course, that neither is particularly helpful from a true fair use point of view. In his comments, Fricklas praised Yahoo!, Microsoft and AOL for saying those companies can work with automated systems to keep copyrighted material from a Web site.

    In a true Kumbaya moment, Fricklas said that all of the companies, content and Internet, have more in common than is commonly perceived. After all, he said, as media companies, Viacom itself is interested in fair use as a “user of content.” MTV, for example, relies on fair use in its programming, he said, adding that he wouldn't like to see every kind of right locked up tight for media companies. “We need a robust world where people use things in popular culture in the right kinds of ways,” he said.

    Fricklas then praised startup Veoh, another video-posting site, which has the backing of ex-Disney Chairman Michael Eisner and ex-MTV chief Tom Freston. The site, which just raised $25 million in venture capital, is “doing deals with licensed providers.”

    Let's see if we have this straight. Lawsuits, like the one Viacom filed, don't settle disputes, but they have good propaganda value. Fair use is good, but mainly for media companies to use on their terms, the aforementioned “right kind of ways.” Veoh is a nice cooperative little site – except Fricklas didn't mention that's Veoh embroiled in copyright litigation with Universal Music, which has filed one of those pesky lawsuits accusing Veoh of the things Viacom is accusing YouTube of doing. Veoh has filed a countersuit. (Actually, Veoh filed first as a defensive measure. Didn't help.)

    And what about those automated systems? Fricklas conceded that not every unauthorized use is illegal. But, he said, without any commentary, parody or additional elements, putting up a clip of a show “is never a fair use.” Within that context, the “exact copies” of a show clip are easy to detect, and then can be exorcised automatically.

    What standard is Fricklas looking for? The biggest problem, he said, is people “taking wholesale songs and TV shows and making them available for free.” The Daily Show (a Viacom production) has done some of the funniest, and most instructive, bits on Net Neutrality. While no one is condoning putting up an entire show, what about putting up on a video site the three minutes or so of John Hodgman ripping up an envelope to demonstrate Net Neutrality, particularly if Comedy Central doesn't want to put the clip on its site? Should that explanation be locked away because Viacom wants it locked away?

    By Fricklas' standard that he told the conference, only an individual clip of a show made available to people in a small, non-commercial way that is transformative would be allowed. Clearly, the Daily Show's discussions of Net Neutrality posted to YouTube wouldn't be allowed unless they were in some way made part of a commentary. I suppose one could put up a video saying, “watch this clip of John Hodgman explaining Net Neutrality. He got it right.” That seems like a lot to go through to get the same message across. The act of posting is an implied commentary that it's worth watching.

    Fricklas also wouldn't allow The Digital Millennium Copyright Act (DMCA) to help YouTube's defense. That's because, under his construction, the portions of the DMCA that YouTube relies on relate to storage, and were developed in a day when people were saving things on email, or on web hosting servers. Except that the DMCA covers more than servers – it talks about the conditions under which service providers are exempt from claims of copyright infringement, and deals with transmission and routing of messages, as well as storage.