Viacom Lawyer Goes After Supply, Adversary Google After Demand in Online Infringement Debate
SAN FRANCISCO -- Google and Viacom lawyers took their epic copyright fight outside the courtroom, in a debate over putting the burden of reducing infringement over the Web on each other’s industry. Viacom’s associate general counsel for intellectual property and content protection, Stanley Pierre-Louis, proposed expansion of content filtering beyond user-generated material and of what are called graduated-response alerts by ISPs to subscribers accused of infringement. Oliver Metzger, a senior copyright counsel at Google, replied that the solution lies in attacking the demand for unauthorized content, not the supply. At the State Bar of California’s annual program “The Copyright Office Comes to California,” he proposed late Monday that all media be made available on the Web immediately on release, without sequenced windows and through at least three sale and rental mechanisms. The 2nd U.S. Circuit Court of Appeals last month reinstated a blockbuster Viacom copyright lawsuit against Google’s YouTube (CD April 6 p2).
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Pierre-Louis jokingly went Metzger one better, suggesting that not just media files but all intellectual property be distributed online, including “algorithms for search engines.” He called his opponent’s plan “pie in the sky.” Eliminating release windows would upend Hollywood’s web of business relationships, notably with theaters, Pierre-Louis said. An industry agreement on filtering user-generated content had shown that the technique “prevents piracy in the first place,” he said. Voluntary graduated response in the U.S., the counterpart to legislated three-strikes programs in France and elsewhere, should be expanded to the use of all online platforms for mass infringement from just peer-to-peer networks, Pierre-Louis said. The French law, known as HADOPI, has greatly increased deterrence of infringement and sales of authorized content, he said.
Of the top 10 movies shared without permission last week on BitTorrent, Metzger said, he found none on Hulu or Netflix and four on Amazon.com and Apple’s iTunes Store. “There are people who would pay if it was on the Web,” he said. Consumers should have a choice of ways to buy, Metzger said: All-you-can-eat subscriptions, a la carte, use-it-or-lose-it plans for a set monthly fee, subscriptions to favorite genres. Sharing content with friends and relatives should be allowed, he said. “Admittedly there will be free riders. … There’s always leakage in the copyright system.” But if prices were low enough, there would be little motivation to game the system and the cheating rate would be tolerable to content owners, Metzger said. He derided the proposal by Pierre-Louis as “one size fits all” and “a huge barrier to entry” for Web businesses.
The MPAA will shift its attack strategy in line with expectations that next year BitTorrent will be passed as an infringement channel by linking-sites, such as the seized NinjaVideo and TVShack.net, and streaming sites, indicated Krista Coons, the association’s content-protection counsel. These sites need storage, so cyberlockers like Megaupload -- also the subject of a government seizure -- are the other pillar of “Piracy 2.0,” she said.
Tod Cohen, eBay government-relations vice president, made a pitch for purchasers to be protected, under an extension of the first-sale doctrine applicable to analog goods, from infringement liability for reselling digital content. This arrangement would be more in line with consumers’ expectations than the highly limited licenses they get to use material that they think they're buying at iTunes and elsewhere, he said. The change that Cohen seeks would raise retail prices and affect content protection, Pierre-Louis replied. “The scheme has to be thought through a little bit more for it to work.”