Lawrence Lessig comments on the Viacom v. YouTube lawsuit (see my previous post) in this NY Times editorial. Aside from the question of whether the DMCA is a good law, Lessig’s point is that asking the courts to reinterpret the “safe harbor” clause at this point is inappropriate and will lead to years of chilling uncertainty.
DMCA was basically a huge gift to the content industry, allowing them to keep their old business model in the face of technological obsolescence. Now even those sweeping legal subsidies are not enough for them. The content industry wants to put the burden of policing copyright infringement onto the service providers (which, by the way, includes educational institutions).
The scary thing is that given the legal, social, and rhetorical circumstances, such judicial burden shifting is not only possible but has recent precedent — the Grokster case.
[B]y setting the precedent that the court is as entitled to keep the Copyright Act “in tune with the times” as Congress, it has created an incentive for companies like Viacom, no longer satisfied with a statute, to turn to the courts to get the law updated. Congress, of course, is perfectly capable of changing or removing the safe harbor provision to meet Viacom’s liking. But Viacom recognizes there’s no political support for the change it wants. It thus turns to a policy maker that doesn’t need political support — the Supreme Court.