Despite White House Plan, Did Pirates Win the Week?

Just hours after Warner Bros.’ Barry Meyer and other industry and labor leaders testified before Congress on a tough new plan to fight piracy, a federal court judge on Wednesday rendered a decision that many in Hollywood see as an invitation to infringement.

Judge Lewis Stanton’s decisive ruling in favor of Google and You Tube, in which he rejected Viacom’s claims that the video site was liable for users’ unauthorized posting of tens of thousands of copyrighted clips, was based on his reading of the Digital Millennium Copyright Act, as well as a host of their recent rulings.

But it also seems to have once again exposed fault lines between Hollywood and Silicon Valley — as tired as the concept may be. Many in the tech sector say the decision reinforces their long-held contention social media and user-generated sites just can’t be held responsible for policing all third-party content. Instead, the burden is on the content creators, i.e. studios, networks and record labels, to pin down the when and where their material is being pirated.

That’s not what some key show biz figures want to hear.

Taylor Hackford, the president of the Directors Guild of America, said he was “troubled” by the decision. Since the Viacom filed its suit in 2007, YouTube has deployed advanced fingerprinting software that has gained Hollywood acceptance, but that is not at the heart of Stanton’s decision. It had to do with YouTube’s actions up to 2007, and by his account, they acted properly. He says that if a copyright holder informs a site that they have infringing material, and the site removes it quickly, all is OK.

Hackford said that the decision “permits those who engage in or enable Internet theft to build sites using illegal content provided the site operators promise to take the illegal content down later if they are caught and notified.

“This decision means that content creators and copyright holders will carry 100% of the burden of policing the Internet and pursuing takedown measures for every instance of copyright infringement that they are able to find. Every content owner will need to search the Internet constantly and forever — a never-ending task of Sisyphean proportions.”

He said that the burden will be even greater on directors of independent and low-budget films, because they “do not have the resources at their disposal” to tackle infringement.

“We fear that the precedent established in this ruling, if not overturned by the appeals court, could result in a drastic rising tide of Internet theft that could decimate our members’ livelihoods, their pension and health plans, and their ability to continue creating the content that is beloved by people all over the world.”

Patrick Ross, executive director of the Copyright Alliance, said the decision was “a blank check to anyone who wishes to knowingly profit by infringing another.”

He writes in a blog post, “It’s safe to say that in 1998, no one anticipated millions of people capturing copyrighted audiovisual works electronically and then being enabled to share without authorization those copyrighted works with millions of strangers after a few mere clicks of a button.”

The White House’s plan to fight piracy merely encourages cooperation between entertainment and websites in tracking down pirated content. It also includes a review of existing laws, so it will be interesting to see whether the wrangling in the courts generates new calls for action on Capitol Hill.

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