Nikolaj Nyholm

YouTube and the DMCA

by  | Comment |  2 October 2006

Larry Lessig once proposed a fee to renew copyrights - not to make the creative process more expensive but to ensure that the public retains effective access to intellectual property even if the creator/rights owner no longer sees any value in.
Lessig's concern is that a lot of material languishes in uselessness because the rights holder has lost interest or no longer exists. Clearing the rights to use such material is difficult or impossible - an active rights renewal process would change the balance in favor of use.

No such system is in place - or maybe it is in the guise of DMCA safe harbor regulations. It's no secret that video sharing sites like YouTube generate a lot of traffic through user submission of material that the users don't hold the copyright to. There's plenty of Daily Show clips, Saturday Night Live skits, sports hightlight reels and music videos to be found alongside the genuinely user created material.
YouTube appears to be complying with the DMCA safe harbor regulations and routinely take down material based on complaints from e.g. the TV networks, but clearly the volume of uploads means that material tends to be available on YouTube for a few days before the copyright holders get round to filing complaints and clearly there is lots of material on YouTube that simply isn't of sufficient commercial values for rights owners to keep up with the users. (Which would also explain the enormous availabilty of cheesy 80s music videos on YouTube.)

One could argue that this effectively implements Lessig's scheme: Enforcing copyright now has a non-zero price which means the rights for material of no value will tend to not be enforced.

The good question is whether the balance will remain like this. Mark Cuban has recently spent quite a few blogposts to discuss this issue - his conclusion is that this is a question of YouTube not being a valuable target to sue at the moment, but on the other hand Cuban doesn't see the balance staying this way for ever.

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