[pp.au.general] Viacom's top lawyer: suing P2P users "felt like terrorism"

[Michael Nadler]

http://arstechnica.com/tech-policy/news/2009/11/viacoms-top-lawyer-suing-p2p-users-felt-like-terrorism.ars


Michael Fricklas is Viacom's general counsel, and it's his job to oversee
the company's legal efforts, including its $1 billion lawsuit against
YouTube. When people talk about Big Content, they're talking about people
like Fricklas.

So it might be surprising to watch him tell a class of Yale law students
this month that suing end users for online copyright infringement is
"expensive, and it's painful, and it feels like bullying." While the
recording industry was big on this approach for a while, Fricklas certainly
understands the way it came across to the public when some college student
went up against "very expensive lawyers and unlimited resources and it felt
like terrorism."

Customers "need to be treated with respect," he added, and that respect
extends even to DRM—much of which has been "really bad."

When it comes to Big Content's copyright stances, Fricklas is on board with
some of the criticisms leveled at the content industries—and he doesn't want
to take your mashup down. "Even as part of a big company, and as a consumer,
and as a guy who loves technology and loves gadgets and all the interesting
things that are happening on the Internet, I kind of agree with [the
criticisms]," he said. "I actually care a lot about fair use… What we're
really focused on in our business right now is the exact copy."

Fricklas points to the recent MTV music awards, where Kanye West rushed the
stage, grabbed the mic, and delivered his Internet-meme-producing-line,
"I'mma let you finish, but…" Viacom quickly uploaded the evening's footage
into the content recognition engines of sites like YouTube, which can then
block exact uploads of the same footage or allow rightsholders to monetize
it with ads. Viacom used the tool to block copies of the clip, but not
without offering a solution of its own: the clip was hosted on Viacom
websites and was embeddable and linkable.

The company *wanted* the clip to go viral and wanted people sticking it on
their blogs… but it wanted them to use the official Viacom-hosted
version<http://www.mtv.com/videos/misc/435995/taylor-swift-wins-best-female-video.jhtml#id=1620605>,
and it made it as easy as possible for people to do so. (Viacom was happy to
link to parodies<http://buzzworthy.mtv.com/2009/09/17/is-this-possibly-the-best-kanye-west-taylor-swift-vma-viral-video-of-the-week/>of
the clip in question, even when they were hosted on different sites
and
used bits of the original clip.)

Fair use, not suing your customers, providing the content people want in the
way that they want it—it sounds pretty good. So why are we in the middle of
what copyright scholar William Patry calls the "Copyright Wars"?
Kinder, gentler, but still lovin' DRM

Part of the answer is that "Big Content" is of course a convenient fiction;
every creator and company has a different outlook, is staffed by different
individuals, and relies more or less heavily on exclusive rights under the
Copyright Act.

Viacom, for instance, creates copyrighted works every day, but it's also a
heavy "fair user." Consider The Daily Show, for instance, and think about
just how much of its daily show relies on video footage from other
organizations. Fricklas even showed a spoof movie poster that Viacom had
done years ago—for which it was sued by famous photographer Annie
Leibowitz—and with which it eventually prevailed in court, claiming parodic
fair use.
[image: fair_use_viacom_spoof.jpg]

The company also runs various user-generated content sites of its own, so it
has a direct stake in many of these copyright issues from both sides of the
question.

There are plenty of copyright maximalists still in the business, those whose
mantra is "more copyright is always better," but Fricklas insists he's not
one of these. But he's also no copyfighter, however, and he remains a
vigorous backer of tools like DRM and graduated response. While his brief
talk was hardly a detailed explication of his thought on all issues
copyright-related, it did illustrate why tensions exist between consumers
and even forward-thinking content creators.
DRM

While bashing the experience of many earlier DRM schemes, Fricklas is a firm
believe in the basic concept, saying that it allows consumers to have
experiences they could not have without DRM (or not at the same prices).

The classic cases are 1) online content rental (usually movies) and 2)
online streaming (audio and video). While DRM has largely vanished on paid
audio downloads, it still exists in many streaming and subscription
services. Record labels aren't keen to allow users to pay for a month of
music, download 80,000 tracks, and then stop subscribing.

Movie rentals and on-demand streaming (iTunes, Hulu, Netflix, Epix, etc.)
pose similar challenges, and all use some form of encryption to keep a bit
of control over content. Sure, it's all available on the Intarwebs, but some
percentage of people won't be willing to locate and grab all the same files
from P2P, even though they might be willing to run a simple, local
streamripper.

Fricklas argues that DRM is essential to these kinds of rental models, and
we're willing to concede the general point, when it's done well. (Despite
using Netflix and Hulu regularly, I have yet to be impeded by any sort of
encryption or DRM, and there's no real issue about making backup copies when
the content lives in the cloud.)

But consumer frustration with DRM isn't generally about rentals; it's about
ownership, and video producers have been unwilling to remove DRM either on
physical media (in fact, Blu-ray's gotten much tougher) or digital
downloads. This certainly isn't a "new" business model in any way, and DRM
on these products does in fact butt up against consumer rights (fair use)
and expectations in obvious ways. Ripping a DVD to an iPod, using an
external Blu-ray drive to load a film onto a PC for a long trip, making
backup copies of those expensive Disney films your kids love, using a film
clip in a mashup or piece of criticism—these are all rendered difficult or
impossible to do legally by DRM. What is content protection "enabling" here?

One argument sometimes heard from rightsholders is that DRM applied to
ownership models still "enables" other models like rental because
unencrypted Blu-ray discs (for instance) would be easily pirated. And once
pirated, they exist all over the Internet, and people can simply download
them for free instead of dropping $3 on an online rental.

But the films inevitably make their way to the 'Net regardless of such
protections (and often in advance of the "protected" versions even being
offered for sale at all), so it's hard to see how this applies. A comparison
with the music business is instructive here; after pushing hard for DRM, the
industry eventually abandoned it once it realized that the system made it
overly dependent on the dominant DRM provider (in this case, Apple). And the
digital physical format for music, the compact disc, has gone unprotected
for a couple of decades.

The result? Streaming and subscription models continue to proliferate at
places like Rhapsody, Spotify, Last.fm, Lala, and the Zune store. The "DRM
enables new business models" idea may have some truth to it, but the movie
and video businesses are more than happy to apply tough DRM to their
old-style ownership models, long after even music has abandoned the
practice.

As the examples above indicate, DRM also goes far beyond copyright law in
restricting what buyers can do with things like Blu-ray discs. In this
sense, code trumps law, and it's a criticism that people like Fricklas
recognize (it appeared on one of his slides, but was not discussed in the
talk). Their answer—do things like offer digital, computer-ready copies of
films on Blu-ray and DVDs—is helpful, though it simply swaps one DRM scheme
for another.
Graduated response

Another area of tension between consumers and rightsholders is graduated
response, sometimes referred to as "three-strikes" policies that sanction
those accused of repeat copyright infringement online. While the content
industries like to tout graduated response as a kinder, gentler way to
handle these issues, the worldwide public hasn't been sold on the plan. The
European Parliament voted several times to ban such schemes unless they had
judicial oversight, while France's attempt at passing a graduated response
law was defeated once in the legislature and once by the Constitutional
Council before finally being passed. New Zealand had to scrap its
three-strikes plan and start over after resistance from users and ISPs, and
the UK is in the midst of a furious row over the idea. Graduated response
has never been introduced in Congress, and no major ISP has agreed to adopt
the approach voluntarily.

Still, Fricklas is big on the idea. It's definitely a saner solution to the
issue than hauling college kids into federal court, and feature sanctions
"more proportional to the harm." (This is certainly debatable when it comes
to France-style disconnections and blacklists, however, especially on family
accounts.)

And Fricklas wants to make sure that there are rights of appeal, since the
process can sometimes be a bit too "guilty until proven innocent." But he'd
like to see it handled in a "non-court way" through an ombudsman or arbiter,
not through a judge. Being able to appeal the issue to a judge would
certainly increase everyone's costs and could result in more of the same
spectacle that Fricklas hopes to avoid, but Internet access has become a
fundamental utility. When sanctions, and especially disconnection, are on
the table, issues of due process and law become critical (and even France's
scheme now has judicial oversight of the final step, disconnection).

This is especially true given what Fricklas said earlier in his talk when he
was bashing the record industry for suing individuals: IP addresses can be
spoofed, mistakes can be made, and even with an IP address it's often not
possible to tell who actually did the sharing. For all these reasons, a
mandatory graduated response with Internet disconnections and no judicial
right of appeal will remain one of the areas on which consumers and
rightsholders just can't see eye-to-eye.

The whole talk is worth watching (it's 37 minutes) if you want to better
understand Big Content's copyright perspective from one of its top
practitioners. Of special note is the segment on Viacom's "innovation,"
where Fricklas defends the company against charges often made against
copyright owners that they are all but incapable of doing anything new and
interesting.

It's also a good reminder of places where consumers and the content industry
part ways, and why the Copyright Wars continue to be fought.
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