How Big Media's Copyright Campaigns Threaten Internet Free Expression

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.

The Internet's current, incredible diversity is great news for artists. The traditional artist's lament is that our publishers have us over a barrel, controlling the narrow and vital channels for making works available -- from big gallery owners to movie studios to record labels to New York publishers. That's why artists have such a hard time negotiating a decent deal for themselves (for example, most beginning recording artists have to agree to have money deducted from their royalty statements for "breakage" of records en route to stores -- and these deductions are also levied against digital sales through the iTunes Store!).

But, thanks to the Web, artists have more options than ever. The Internet's most popular video podcasts aren't associated with TV networks (with all the terrible, one-sided deals that would entail); rather, they're independent programs like RocketBoom, Homestar Runner, or the late, lamented Ze Frank Show. These creators -- along with all the musicians, writers, and other artists using the Net to earn their living -- were able to write their own ticket. Today, major artists like Radiohead and Madonna are leaving the record labels behind and trying novel, Net-based ways of promoting their work.

And it's not just the indies who benefit: The existence of successful independent artists creates fantastic leverage for artists who negotiate with the majors. More and more, the big media companies' "like it or leave it" bargaining stance is being undermined by the possibility that the next big star will shrug, turn on her heel, and make her fortune without the big companies' help. This has humbled the bigs, making their deals better and more artist-friendly.

Bargaining leverage is just for starters. The greatest threat that art faces is suppression. Historically, artists have struggled just to make themselves heard, just to safeguard the right to express themselves. Censorship is history's greatest enemy of art. A limited-liability Web is a Web where anyone can post anything and reach everyone.

What's more, this privilege isn't limited to artists. All manner of communication, from the personal introspection in public "diaries" to social chatter on MySpace and Facebook, are now possible. Some artists have taken the bizarre stance that this "trivial" matter is unimportant and thus a poor excuse for allowing hosted services to exist in the first place. This is pretty arrogant: A society where only artists are allowed to impart "important" messages and where the rest of us are supposed to shut up about our loves, hopes, aspirations, jokes, family, and wants is hardly a democratic paradise.

Artists are in the free expression business, and technology that helps free expression helps artists. When lowering the cost of copyright enforcement raises the cost of free speech, every artist has a duty to speak out. Our ability to make our art is inextricably linked with the billions of Internet users who use the network to talk about their lives.

Cory Doctorow is co-author of the Boing Boing blog, as well as a journalist, Internet activist, and science fiction writer. Read his previous InformationWeek columns.