The Media Wonk The Senate Judiciary Committee held an executive business meeting (i.e. markup) last week where members debated the Free Flow of Information Act of 2013. Modeled on state “shield laws” the bill would create a federal shield for journalists protecting them against being compelled to testify about their sources by a federal court. But according to a McClatchy report, the bill had to be held over to the next meeting after the senators were unable to agree on a definition of “journalist” to be protected by the law.
Here’s hoping it continues to confound them.
Don’t get me wrong. As a one-time (albeit small-time) accredited journalist the Media Wonk very much wants to be sympathetic to bill’s aims. The Obama Administration’s rough and disgraceful treatment of reporters caught up in its Ahab-like pursuit of leaks and leakers really does need to stop, or be stopped. But a federal shield law, particularly now, is a very fraught way of trying to do it.
Concurrent Media is the new online home of Paul Sweeting (that’s me), founder and editor of The Media Wonk blog. The entire Media Wonk archive has been incorporated into the new site and can be browsed and searched here. And while you’re here, click on over to the Concurrent Media home page and check out my latest stylings.
The Media Wonk blog made its first appearance in 2006, as part of Content Agenda, a website owned by Reed Business Information. Content Agenda went dark in 2009, when Reed decided to terminate most of its business publishing activities, and The Media Wonk blog was reborn as a standalone site.
In August 2010 I launched a new venture, Concurrent Media Strategies, LLC, which provides strategic business analysis and editorial services to clients on digital media, technology and public policy issues. The Concurrent Media website serves both as the online face of the company and the place where I now do most of my media-related blogging. In December 2010, The Media Wonk web site was shut down as a standalone blog and its archives moved over here.
I’m grateful to all those who have followed my writings over the years and have made their way to the new site. Welcome.
The lesson for content owners from yesterday’s smackdown of Viacom by U.S. District Court Judge Louis Stanton in its lawsuit against YouTube/Google should be clear (which, of course, is no guarantee it will be): stop bringing DMCA safe-harbor suits against online service providers. It’s not working, and it’s past time to get on with plan B.
The Viacom case can now be added to a string of cases –beginning with Perfect 10 v. CCBill in 2007 and including Io Group v. Veoh (2008), and UMG v. Veoh (2009) – in which courts have refused to impose liability or additional procedural requirements on service providers beyond the strict language of the § 512 (c) safe-harbor provisions. Though The Media Wonk is not a lawyer, it sure seems like there’s a pattern developing here, and it’s not a favorable one for the content industries.
Unlike Grokster and LimeWire, which, as Judge Stanton noted in yesterday’s opinion, involved peer-to-peer file-sharing networks that are nowhere addressed in the DMCA, Veoh and YouTube are precisely the sort of web hosting services Congress envisioned and intended to protect from liability in drafting the DMCA, as Stanton also noted. He went to great length, in fact, to emphasize the point, giving over whole pages in his opinion to long excerpts from the 1998 House and Senate committee reports on the law detailing exactly how Congress intended the language in § 512 of the statute to be construed by courts. The only real question was whether the standard industry practices YouTube followed regarding notice-and-takedown and the handling of repeat infringers meet the procedural requirements spelled out in the statute to qualify for safe-harbor protection. Like the Veoh courts before him, Stanton said they do.
Not surprisingly, Viacom didn’t see it that way. In a statement issued after the decision was handed down it seemed to suggest that it has YouTube just where it wants ‘em:
We believe that this ruling by the lower court is fundamentally flawed and contrary to the language of the Digital Millennium Copyright Act, the intent of Congress, and the views of the Supreme Court as expressed in its most recent decisions. We intend to seek to have these issues before the U.S. Court of Appeals for the Second Circuit as soon as possible. After years of delay, this decision gives us the opportunity to have the Appellate Court address these critical issues on an accelerated basis. We look forward to the next stage of the process.
The best case scenario for Viacom would obviously be a win in the Second Circuit, which carries a lot of weight in judicial circles on copyright matters. That might create enough of a split with the Ninth Circuit, which handed down the Perfect 10 case and where both Veoh courts are located, to tempt the Supreme Court to take up the issue at some point and give content owners a favorable ruling.
I can’t speak definitively to the legal likelihood of that scenario actually playing out. But again, to a layperson it seems like a long shot. Four courts have now pointedly refused to impose liability or new procedural requirements on service providers beyond the strict language in the statute, and zero courts have agreed to.
It’s possible, of course, that things could go differently in the Second Circuit, and the court (or the Supreme Court) will create a new legal standard in which a general awareness that unfettered copyright infringement is occurring on a platform is sufficient to disqualify a service provider from the § 512 safe harbor.
My question is: how much would that actually help Viacom? What sort of remedy, apart from monetary damages, would the court impose? It’s not going to erase the safe harbor language from the statute, so the principle of limited liability for service providers would remain. The best case for Viacom would be if the court were to create some new procedural requirements for service providers to qualify for the safe harbor, such as mandatory filtering. That would give Viacom and other content owners far more leverage in negotiating with service providers over the use of their content.
Since filtering is nowhere mentioned in the statute, however, that seems like a heavy lift for the court. If content owners really want mandatory filtering, I think they’re going to have to go to Congress.
That would mean reopening the DMCA, however, which means opening a gigantic can of worms from which all sorts of unpredictable outcomes could crawl. In the meantime, deals with YouTube and other online service providers that could profit Viacom, however imperfectly, are not getting cut.
It’s possible that, some day, Viacom will get a better deal out of the courts, if not from the YouTube case than from some other. But hoping for a three-way bank-shot is not much of a business plan.