[Infowarrior] - Viacom's top lawyer: suing P2P users "felt like terrorism"

[Richard Forno]

Viacom's top lawyer: suing P2P users "felt like terrorism"
Michael Fricklas, Viacom's general counsel, tells a group of Yale Law  
students that he's a huge fan of fair use, doesn't want to take down  
your YouTube mashup, and has no plans to start suing P2P users in  
federal courts—but he still loves DRM and "three strikes" laws.

By Nate Anderson

http://arstechnica.com/tech-policy/news/2009/11/viacoms-top-lawyer-suing-p2p-users-felt-like-terrorism.ars

Michael Fricklas is Viacom's general counsel, and it's his job to  
oversee the company's legal efforts, including its $1 billion lawsuit  
against YouTube. When people talk about Big Content, they're talking  
about people like Fricklas.
So it might be surprising to watch him tell a class of Yale law  
students this month that suing end users for online copyright  
infringement is "expensive, and it's painful, and it feels like  
bullying." While the recording industry was big on this approach for a  
while, Fricklas certainly understands the way it came across to the  
public when some college student went up against "very expensive  
lawyers and unlimited resources and it felt like terrorism."

Customers "need to be treated with respect," he added, and that  
respect extends even to DRM—much of which has been "really bad."

When it comes to Big Content's copyright stances, Fricklas is on board  
with some of the criticisms leveled at the content industries—and he  
doesn't want to take your mashup down. "Even as part of a big company,  
and as a consumer, and as a guy who loves technology and loves gadgets  
and all the interesting things that are happening on the Internet, I  
kind of agree with [the criticisms]," he said. "I actually care a lot  
about fair use… What we're really focused on in our business right now  
is the exact copy."

Fricklas points to the recent MTV music awards, where Kanye West  
rushed the stage, grabbed the mic, and delivered his Internet-meme- 
producing-line, "I'mma let you finish, but…" Viacom quickly uploaded  
the evening's footage into the content recognition engines of sites  
like YouTube, which can then block exact uploads of the same footage  
or allow rightsholders to monetize it with ads. Viacom used the tool  
to block copies of the clip, but not without offering a solution of  
its own: the clip was hosted on Viacom websites and was embeddable and  
linkable.

The company wanted the clip to go viral and wanted people sticking it  
on their blogs… but it wanted them to use the official Viacom-hosted  
version, and it made it as easy as possible for people to do so.  
(Viacom was happy to link to parodies of the clip in question, even  
when they were hosted on different sites and used bits of the original  
clip.)

Fair use, not suing your customers, providing the content people want  
in the way that they want it—it sounds pretty good. So why are we in  
the middle of what copyright scholar William Patry calls the  
"Copyright Wars"?

Kinder, gentler, but still lovin' DRM
Part of the answer is that "Big Content" is of course a convenient  
fiction; every creator and company has a different outlook, is staffed  
by different individuals, and relies more or less heavily on exclusive  
rights under the Copyright Act.

Viacom, for instance, creates copyrighted works every day, but it's  
also a heavy "fair user." Consider The Daily Show, for instance, and  
think about just how much of its daily show relies on video footage  
from other organizations. Fricklas even showed a spoof movie poster  
that Viacom had done years ago—for which it was sued by famous  
photographer Annie Leibowitz—and with which it eventually prevailed in  
court, claiming parodic fair use.

The company also runs various user-generated content sites of its own,  
so it has a direct stake in many of these copyright issues from both  
sides of the question.
There are plenty of copyright maximalists still in the business, those  
whose mantra is "more copyright is always better," but Fricklas  
insists he's not one of these. But he's also no copyfighter, however,  
and he remains a vigorous backer of tools like DRM and graduated  
response. While his brief talk was hardly a detailed explication of  
his thought on all issues copyright-related, it did illustrate why  
tensions exist between consumers and even forward-thinking content  
creators.

DRM
While bashing the experience of many earlier DRM schemes, Fricklas is  
a firm believe in the basic concept, saying that it allows consumers  
to have experiences they could not have without DRM (or not at the  
same prices).

The classic cases are 1) online content rental (usually movies) and 2)  
online streaming (audio and video). While DRM has largely vanished on  
paid audio downloads, it still exists in many streaming and  
subscription services. Record labels aren't keen to allow users to pay  
for a month of music, download 80,000 tracks, and then stop subscribing.

Movie rentals and on-demand streaming (iTunes, Hulu, Netflix, Epix,  
etc.) pose similar challenges, and all use some form of encryption to  
keep a bit of control over content. Sure, it's all available on the  
Intarwebs, but some percentage of people won't be willing to locate  
and grab all the same files from P2P, even though they might be  
willing to run a simple, local streamripper.

Fricklas argues that DRM is essential to these kinds of rental models,  
and we're willing to concede the general point, when it's done well.  
(Despite using Netflix and Hulu regularly, I have yet to be impeded by  
any sort of encryption or DRM, and there's no real issue about making  
backup copies when the content lives in the cloud.)

But consumer frustration with DRM isn't generally about rentals; it's  
about ownership, and video producers have been unwilling to remove DRM  
either on physical media (in fact, Blu-ray's gotten much tougher) or  
digital downloads. This certainly isn't a "new" business model in any  
way, and DRM on these products does in fact butt up against consumer  
rights (fair use) and expectations in obvious ways. Ripping a DVD to  
an iPod, using an external Blu-ray drive to load a film onto a PC for  
a long trip, making backup copies of those expensive Disney films your  
kids love, using a film clip in a mashup or piece of criticism—these  
are all rendered difficult or impossible to do legally by DRM. What is  
content protection "enabling" here?

One argument sometimes heard from rightsholders is that DRM applied to  
ownership models still "enables" other models like rental because  
unencrypted Blu-ray discs (for instance) would be easily pirated. And  
once pirated, they exist all over the Internet, and people can simply  
download them for free instead of dropping $3 on an online rental.

But the films inevitably make their way to the 'Net regardless of such  
protections (and often in advance of the "protected" versions even  
being offered for sale at all), so it's hard to see how this applies.  
A comparison with the music business is instructive here; after  
pushing hard for DRM, the industry eventually abandoned it once it  
realized that the system made it overly dependent on the dominant DRM  
provider (in this case, Apple). And the digital physical format for  
music, the compact disc, has gone unprotected for a couple of decades.

The result? Streaming and subscription models continue to proliferate  
at places like Rhapsody, Spotify, Last.fm, Lala, and the Zune store.  
The "DRM enables new business models" idea may have some truth to it,  
but the movie and video businesses are more than happy to apply tough  
DRM to their old-style ownership models, long after even music has  
abandoned the practice.

As the examples above indicate, DRM also goes far beyond copyright law  
in restricting what buyers can do with things like Blu-ray discs. In  
this sense, code trumps law, and it's a criticism that people like  
Fricklas recognize (it appeared on one of his slides, but was not  
discussed in the talk). Their answer—do things like offer digital,  
computer-ready copies of films on Blu-ray and DVDs—is helpful, though  
it simply swaps one DRM scheme for another.

Graduated response
Another area of tension between consumers and rightsholders is  
graduated response, sometimes referred to as "three-strikes" policies  
that sanction those accused of repeat copyright infringement online.  
While the content industries like to tout graduated response as a  
kinder, gentler way to handle these issues, the worldwide public  
hasn't been sold on the plan. The European Parliament voted several  
times to ban such schemes unless they had judicial oversight, while  
France's attempt at passing a graduated response law was defeated once  
in the legislature and once by the Constitutional Council before  
finally being passed. New Zealand had to scrap its three-strikes plan  
and start over after resistance from users and ISPs, and the UK is in  
the midst of a furious row over the idea. Graduated response has never  
been introduced in Congress, and no major ISP has agreed to adopt the  
approach voluntarily.

Still, Fricklas is big on the idea. It's definitely a saner solution  
to the issue than hauling college kids into federal court, and feature  
sanctions "more proportional to the harm." (This is certainly  
debatable when it comes to France-style disconnections and blacklists,  
however, especially on family accounts.)

And Fricklas wants to make sure that there are rights of appeal, since  
the process can sometimes be a bit too "guilty until proven innocent."  
But he'd like to see it handled in a "non-court way" through an  
ombudsman or arbiter, not through a judge. Being able to appeal the  
issue to a judge would certainly increase everyone's costs and could  
result in more of the same spectacle that Fricklas hopes to avoid, but  
Internet access has become a fundamental utility. When sanctions, and  
especially disconnection, are on the table, issues of due process and  
law become critical (and even France's scheme now has judicial  
oversight of the final step, disconnection).

This is especially true given what Fricklas said earlier in his talk  
when he was bashing the record industry for suing individuals: IP  
addresses can be spoofed, mistakes can be made, and even with an IP  
address it's often not possible to tell who actually did the sharing.  
For all these reasons, a mandatory graduated response with Internet  
disconnections and no judicial right of appeal will remain one of the  
areas on which consumers and rightsholders just can't see eye-to-eye.

The whole talk is worth watching (it's 37 minutes) if you want to  
better understand Big Content's copyright perspective from one of its  
top practitioners. Of special note is the segment on Viacom's  
"innovation," where Fricklas defends the company against charges often  
made against copyright owners that they are all but incapable of doing  
anything new and interesting.

It's also a good reminder of places where consumers and the content  
industry part ways, and why the Copyright Wars continue to be fought.