To punish MySpace is to stifle cyberspace
Roby Leung
the dawn of time, technology has constantly outpaced the law - but
never quite as fast as in the digital age. Some of the most profitable
and popular places on the internet today - from MySpace, to YouTube
and beyond - exist in legal limbo. Every day, MySpacers and YouTubers
commit millions of arguably unlawful acts: for when they are not
posting riveting cellphone footage of the baby or the cat or the milk
train passing, they are lip-syncing to the copyrighted songs of hot
young starlets, or posting top-selling albums for free. Much of what
the digerati do online is probably illegal: since the dawn of internet
time, it was ever thus.
But what about the websites that provide a venue for all this new-age
lawlessness? That remains a remarkably open question. When America's
digital copyright law was passed a decade ago, no lawmaker could have
foreseen the existence of a site where millions of netizens could post
homemade videos online (not to mention slicker flicks from famous
filmmakers, whose copyright they do not remotely own).
Now that law is being tested in lawsuits filed, among others, by
Universal Music, the world's largest recorded-music company, against
MySpace and other social networking sites. These suits call on courts
to solve the central problem of regulating the internet: how can
websites be held responsible for what their users do online, without
forcing them to vet every posting beforehand in ways that would
throttle innovation?
Universal's lawsuit against MySpace, filed last month, claims that the
darling of the social networking community has risen to prominence not
because of "user-generated content", but because of
"user-stolen" intellectual property - a charge as old as Napster,
the music-sharing site that launched courts into the business of trying
to regulate online "copytheft" in the first place.
Universal's suit claims that MySpace, owned by News Corp, is a
"willing partner" in copyright infringement. "No intellectual
property is safe in the MySpace world of infringement," it says: not
songs, not music videos, not even an unreleased album by the rapper
Jay-Z, which turned up on MySpace before it showed up in the stores.
But proving that some MySpacers commit copytheft is almost irrelevant.
The Digital Millennium Copyright Act, the antique 1998 law that applies
to such practices, guarantees sites such as MySpace broad immunity for
what their users do online. And in the decade since that law was
passed, courts have interpreted that immunity generously. As long as
websites react smartly when informed that they are hosting material
that infringes somebody else's copyright - and take it down right
away - they have not normally been held liable. Websites sued for
defamation, or for violating federal fair housing laws, have largely
enjoyed the same immunity under different federal laws.
US courts have applied a light touch to regulating the internet.
Websites that host the wrongdoing of users can escape liability, as
long as they are not too intimately involved with acts of unlawfulness.
But where should courts draw the line between innocent web hosting, and
copytheft? The MySpace lawsuit could provoke courts to write some clear
rules for such sites - but more likely, it will not. Universal and
MySpace are quite likely to settle the litigation before it gets before
a judge. And in the end, that might be the least worst result. Some
problems are better solved by money than by courts.
Copyright owners have a legitimate gripe that their creations are being
posted for free online. MySpace has a legitimate defence that many of
its users do not infringe anyone's copyright. They must be able to find
a middle ground that gives copyright owners compensation, without
crippling websites that have helped make everyone a web or film star.
YouTube rushed to strike licensing deals with prominent content owners
before it was bought by Google earlier this year, and Universal was
negotiating for such a deal with MySpace before it decided to sue.
Copyright owners should get some of the profits generated by MySpace
and YouTube - but they would be foolish to try to shut them down
entirely. The US Supreme Court made clear last year, in the landmark
Grokster case, that it will stand for quite a lot of copytheft, rather
than impede innovation. The music and film industries can try to
strangle the new sites with litigation, but they will probably not win
in the end. Now is the time to let the market fix this problem, before
any more harm is done