When people talk about "creator's rights," they usually mean copyright, but copyright is just a side dish for creators: The most important right we have is the right to free expression. And these two rights are always in tension.
Take Viacom's claims against YouTube. The entertainment giant says that YouTube has been profiting from the fact that YouTube users upload clips from Viacom shows, and it demands that YouTube take steps to prevent this from happening in the future. YouTube actually offered to do something very like this: It invited Viacom and other rights holders to send them all the clips they wanted kept offline, and promised to programatically detect these clips and interdict them.
But Viacom rejected this offer (see "Viacom CEO: YouTube Antipiracy Not Quite There," "Viacom exec not satisfied with Google plan," and "Viacom rejects YouTube Antipiracy"). Rather, the company wants YouTube to just figure it out, determine a priori which video clips are being presented with permission and which ones are not. After all, Viacom does the very same thing: It won't air clips until a battalion of lawyers has investigated them and determined whether they are lawful. [Editor's Note, Nov. 7, 1pm: Jeremy Zweig vice president of media and editorial at Viacom, disputes this account. "We haven't rejected anything. The 'interdiction' system that Cory describes is not operational, and YouTube hasn't asked us for our content to populate the system they announced a couple of weeks ago," Zweig stated in an e-mail.]
But the Internet is not cable television. Net-based hosting outfits -- including YouTube, Flickr, Blogger, Scribd, and the Internet Archive -- offer free publication venues to all comers, enabling anyone to publish anything. In 1998's Digital Millennium Copyright Act, Congress considered the question of liability for these companies and decided to offer them a mixed deal: Hosting companies don't need to hire a million lawyers to review every blog post before it goes live, but rights holders can order them to remove any infringing material from the Net just by sending them a notice that the material infringes.
This deal enabled hosting companies to offer free platforms for publication and expression to everyone. But it also allowed anyone to censor the Internet, just by making claims of infringement, without offering any evidence to support those claims, and without having to go to court to prove their claims. Abusing the DMCA presents an irresistible lure to anyone with a beef against an online critic, from the Church of Scientology to Diebold's voting machines division.
The proposal for online hosts to figure out what infringes and what doesn't is wildly impractical. Under most countries' copyright laws, creative works receive a copyright from the moment that they are "fixed in a tangible medium" (hard drives count), and this means that the pool of copyrighted works is so large as to be practically speaking infinite. Every e-mail, instant message, blog post, LOLcat, Facebook status update, and tweet on Twitter is a copyrighted work.
Knowing whether a work is copyrighted, who holds the copyright, and whether a posting is made with the rights holder's permission (or in accord with each nation's varying ideas about fair use) is impossible. The only way to be sure is to start from the presumption that each creative work is infringing, and then make each Internet user prove, to some lawyer's satisfaction, that she has the right to post each drib of content that appears on the Web.
Imagine that such a system were the law of the land. There's no way Blogger or YouTube or Flickr could afford to offer free hosting to their users. Rather, all these hosted services would have to charge enough for access to cover the scorching legal bills associated with checking all material. And not just the freebies, either: Your local ISP, the servers hosting your company's Web site or your page for family genealogy -- they'd all have to do the same kind of continuous checking and rechecking of every file you publish with them.
It would be the end of any publication that couldn't foot the legal bills to get off the ground. The multibillion-page Internet would collapse into the homogeneous world of cable TV (remember when we thought that a "500-channel universe" would be unimaginably broad? Imagine an Internet with only 500 "channels!"). From Amazon to Ask A Ninja, from Blogger to The Everlasting Blort, every bit of online content is made possible by removing the cost of paying lawyers to act as the Internet's gatekeepers.