MySpace to Join YouTube in Offering Commercial Content, Viacom Suit Could Derail DMCA, Says Law Professor

MySpace, owned by Rupert Murdoch’s News Corporation, is behind YouTube in video content, according to news reports, but a Financial Times article published by MSNBC online says that may soon change. Could they get themselves into the Viacom tangle as well?

The article reports that News Corp., itself a “big media company” is in “very active negotiations” with other big media companies to license copyrighted content for their site’s video offerings. Already MySpace is a leading site for user-created video content, similar to YouTube.

MySpace

A battle with Viacom:

Google, which purchased YouTube and now finds itself in a battle with Viacom concerning copyrighted content, is cited in a CNN article as saying that they have “done their homework” and are confident that the DMCA, the law that modernizes copyright to give “safe harbor” to hosting companies, is on their side. The Chief Legal Officer, who spearheaded the YouTube acquisition, says CNN, cited a recent decision in their favour which cited the “safe harbor” provision, and also noted that companies such as Amazon.com and eBay are covered by the provision as well.

Modern Strategy:

According to an op-ed piece by Stanford law professor Lawrence Lessig, published on Sunday in the New York Times, Viacom’s tactics in attempting to prove Google wrong are a new use for a modern strategy which critics call “legislating from the bench.” Viacom, he says, is asking the Supreme Court to “interpret” the DMCA in a way that supports their argument. This would be by raising the question of whether, as previously decided by the court in their Betamax decision, the technology is not at fault and Congress’ intent in the DMCA was clear, or to take the reins of complex copyright law into their own hands, and create a standard of earning the freedom from liability by “doing enough” to prevent infringement.

Unfortunately, according to the professor, the court is willing to try to “legislate from the bench,” and not give Congress the opportunity to chart the course of copyright law as it has for two centuries.

Multiple legal threads:

With YouTube facing lawsuits and MySpace pulling up alongside them in the video arena, legal questions are having broader impact. Further interpretations of any Supreme Court decision could impact other cases such as those against eBay, at least regarding copyright. eBay’s safe harbor status was cited by Googles Chief Legal Officer as one basis for their own confidence, so there are multiple legal threads to follow as the cases evolve.

As Professor Lessig notes, Viacom has taken note of a recent trend and, rather than seek popular support, “thus turns to a policy maker that doesn’t need political support.” This will, he notes, probably take considerable time, with uncertainty in a growing online media market in the meantime.

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