The Lawsuits Against Google: Why Outdated Concepts of Copyright Law Don't Click With the Internet

As an October 23 New York Times article reported, Google is currently facing a host of lawsuits. Among them are claims of copyright violation. And Google's acquisition of YouTube, the Times notes, also means the acquisition of many more copyright suits.

Still, Google says it isn't worried: Indeed, as the Times article reports, General Counsel David C. Drummond says he believes, based on a number of court precedents, that Google is fully protected by the "safe harbor" provision of the 1998 Digital Millennium Copyright Act (DMCA). As I will explain, I think he's right.

If Drummond is right, though, it seems that the law has put photographers and moviemakers, in particular, in a miserable position: They may find their work cropping up prominently on Google or YouTube - seen by thousands or even millions, sometimes without even the proper attribution - and yet they have no remedy, legally, but to ask that it be removed. They may reap not a single penny from the display of their work - yet such display plays a key role in enhancing the attractiveness of Google and YouTube for investors and advertisers.

These photographers and moviemakers seem, then, to have been robbed of the basic artistic right to profit from viewers' enjoyment of their work. Is there a way the law can change to honor this right? In this column, I'll consider that question - which turns out to be more complicated than it seems. It turns out that, to honor that right, copyright law might have to be reworked from the ground up.

The Safe Harbor - and Why It Applies

First, let's consider the DMCA "safe harbor" that Google's General Counsel so heavily relies on - and why it says what it says.

The relevant DMCA provision says - in essence - that unless an automatic service like Google learns of copyright infringement, or of "facts or circumstances from which infringing activity is apparent," it won't be held responsible in court for money damages caused by the infringement, nor for automatic statutory penalties that might otherwise apply. (The "safe harbor" provision basically allows a website owner, after being informed of the presence of infringing material, a certain amount of time to remove that material from its site; if the site meets the provision's criteria, it avoids liability entirely.)

(Note, however, that this "safe harbor" doesn't apply to allegations of direct copyright infringement by Google itself. Thus, this provision isn't at issue in the Authors' Guild's suit against Google for scanning its members' books for use by Google Print - which I discussed in a previous column. There, Google not only had knowledge of the alleged infringement, it actually directed it to occur.)

The principle underlying the "safe harbor" is that it's wrong to hold a service liable for lawbreaking that - based on the architecture for which it opted -- it couldn't control prior to posting, and didn't have a fair chance to remedy after posting.

Possible Alternatives to the Safe Harbor - and Their Major Drawbacks

There were two other ways Congress could have written the safe harbor. One was clearly unfair: It would have simply imposed liability regardless of fault -- otherwise known as "strict liability" -- on Internet Service Providers for all copyright infringement by their users. This version of the safe harbor would have been grossly unjust because it would have created astronomical potential liability - liability in amounts so high that paying them could have put useful sites out of business, and would have unacceptably chilled free speech on the Internet.

But there was also another, middle way. Congress could have not just taken websites' choice of architecture for granted, but rather required websites to modify their architecture in order to limit the risk of copyright infringement by users. For instance, it could have mandated that sites use gateways that verify copyright permission - such as checking the material against a registry - before photos or videos could be displayed.

This middle way would have had its own drawbacks - lots of them. It would have been a "prior restraint" diminishing the accessibility of a great deal of material that was not infringing, but was properly posted by the author or licensee. For this reason, it would almost surely have run afoul of the First Amendment. And it would have been the kind of command-and-control regulation that gives software designers - and Internet aficionados generally - nightmares about Big Brother.

Nevertheless, the availability of even this rather ugly middle way shows that it's not impossible to protect copyright on the Internet - just very burdensome. And some of that burden, I will argue, is due to the increasingly poor fit between copyright and the modern realities of the Internet.

The Core of Copyright - and How the Internet Has Made It Crumble

Copyright, at base, is the author's right to forbid others from copying - in the words of the Copyright Act -- "original works of authorship fixed in a tangible medium of expression." For such works' use, the author has the power to grant licenses, both exclusive and nonexclusive, at a negotiated fee, or at no fee at all.

The Internet has challenged the very foundations of these basic concepts. Is a work "copied" when it simply appears in a new window, or when the website on which it appears is included in the result of a Google search? In the case of a mutating online work of group authorship, it is ever accurate to call that work "fixed"? And how is anything on the Internet "tangible" except in the sense that we touch our keyboards or look at our screens to access it?

Perhaps most fundamentally, there's the concept of "works of authorship." Authors historically have been individuals or small groups. Even in the context of "work made for hire agreements" transferring copyrights from employees to employers, the number of the true authors of a work was relatively modest - numbering in the dozens, scores, or hundreds, and representing a given department or team at a media company.

Not so with the Internet, which enables works to be authored by very large groups - Wikipedia and "open source" software are good examples. For these groups to negotiate among themselves on license terms, licensees, or fees, would be highly impracticable, but the problem has been solved by "gateway" agreements, by which co-authors typically simply waive copyright claims and the fees that could come with them.

Who Are the True "Authors" of a Given Website, and Should They Be Paid?

It doesn't have to be that way, though: Co-authors could also agree, instead, to be paid a small royalty equivalent to a share of a for-profit site's total profits. And one could see a website like YouTube as being "authored" - when looking at the entire collection of individual works combined as a whole -- by all those holding the individual copyrights to all of the individual works posted on the site, taken together.

Google raises more complex issues: The software that creates its search functions - itself doubtless copyrighted and/or patented - plays a huge role in the sites' marketability. And that, in turn, raises the possibility that a software designer could be, in effect, the co-author of works that he or she helps connect with an audience.

So how should copyright manifest itself on the Internet? One core idea behind the doctrine is that creativity should be connected to the income it generates, in order to provide incentives for more creativity.

Currently, on the Internet, that's not always happening. Indeed, some real unfairness is possible - with websites potentially garnering ad income that stems, in large part, from original work that they played no part in authoring. If the Google-YouTube partnership combines Google's use of targeted ads with YouTube's content, just such unfairness could result.

Forcing websites to become the copyright police would be a poor (and, indeed, an anti-free-speech) answer to the problem. But is it a good enough answer to let sites get off scot-free as long as they de-post copyrighted material when they learn of the violation - even if they've already profited from that very violation, via ad revenue?

We need to go back to basics - focusing on the crucial need to provide incentives for, and to compensate, creativity by capturing the profits to which it leads.

To begin with, "copying" may no longer be as useful an idea as "display." After all, a site may display, and earn revenue from, original content without technically copying it - by including the content in a search result, linking to it, or the like. When "eyeballs" result in revenue, perhaps it's the display - the act that garners the "eyeballs" - that should lead to compensation for the copyright holder, regardless of whether or not it's actually accompanied by copying.

Similarly, "fixed media" may no longer be as useful a concept as "proprietary media." The contrast between "fixed" and "unfixed" used to be simple: Ink was preserved on paper for a long time; spoken words disappeared as soon as they stopped reverberating in the listener's ear. With the Internet allowing purging, caching, and time-limited display, the line between what's fixed and unfixed is blurred.

Finally, "author" may no longer be as useful as "contributor" - a concept that could encompass the roles of all the people and websites that play a role in the chain that connects creative content with an end user. Without the entire chain, the creative work could end up being the proverbial tree falling in the forest that no one hears. Accordingly, it's possible that not only the copyright holder, but everyone who made a creative contribution along the way ought to be compensated. And if others' contributions dwarf the copyright holder's, perhaps the copyright holder's slice of the pie should be comparatively thin.

If we do switch our legal nomenclature to reflect Internet realities, then we may stop asking, Shouldn't a copyright holder have the legal right to revenue from the copying of her original work in a fixed medium? Instead, we may ask, Shouldn't a contributor have the legal right to revenue from display of her work by proprietary media? And our answer, then, may well be yes.