[The Congress shall have Power…] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; -- U.S. ConstitutionWhat does the Constitution have to say about the copyright issues in the Viacom lawsuit against Google regarding the posting of their material on YouTube? Directly, nothing. These few words are the only constitutional authorization for patent and copyright law, and the clause does not even mention them by name.
Article 1, Section 8, Clause 8
Within these limits, copyright has been defined by Congress and the courts. There has always been a healthy tension built into the constitutional provision, balancing the public interest ("to promote the progress of science and useful arts") and the intellectual property rights of creators. Over the years, the compromise that tried to resolve these competing claims became known as the doctrine of fair use.
Fair use is what has always allowed people to quote reasonable excerpts of copyrighted works such as books and magazines, on the grounds that doing otherwise would totally stifle intellectual and cultural life. And it's fair use that has come under increasing attack in recent years by corporate media giants -- entities the Framers could not even have imagined, and who often act as if, when it comes to digital media, there is no such thing as fair use, but only their absolute intellectual property rights.
That's why the YouTube lawsuit seems so surreal. The public interest is the last thing of concern to the corporate giants now fighting it out in the courts. The public might think that putting up a short clip of the John Stewart Show on YouTube is fair use. The corporate giants disagree, and are only fighting about how to divide the spoils. Walter Mossberg wrote about this a few days ago in the Wall Street Journal
I am not a lawyer, and I have no idea how this lawsuit will wind up. I suspect it is mainly a bargaining tactic by Viacom. But I know one thing: This fight isn't primarily about consumers and their rights, and its outcome won't necessarily make things better for Internet users.Congress Created this situation with the Digital Millennium Copyright Act (DMCA), and Congress needs to fix it -- taking input from more than the media giant lobbyists who largely wrote the DMCA. Mossberg again:
As a nonlawyer, I think these clips seem like "fair use," an old copyright concept that seems to have weakened under the advent of the new laws. Under fair use, as most nonlawyers have understood it, you could quote this sentence in another publication without permission, though you'd need the permission of the newspaper to reprint the entire column or a large part of it. A two-minute portion of a 30-minute TV show seems like the same thing to me.Mossberg is right, and I hope his voice helps prod Congress into action. Congress needs to protect the public interest. Otherwise, the promise of the Internet will be lost in intellectual property gridlock. -- or even worse, a two-tier Internet in which the only full participants will be people with the means to pay endless, exorbitant user fees of one sort or another.
But why should I have to guess about that? What consumers need is real clarity on the whole issue of what is or isn't permissible use of the digital content they have legally obtained. And that can come only from Congress. Congress is the real villain here, for having failed to pass a modern copyright law that protects average consumers, not just big content companies.
We need a new digital copyright law that would draw a line between modest sharing of a few songs or video clips and the real piracy of mass distribution. We need a new law that would define fair use for the digital era and lay out clearly the rights of consumers who pay for digital content, as well as the rights and responsibilities of Internet companies.