(courtesy of lessig.org)

In the midst of this ideological battle between copyright owners (who, naturally, want to protect their content) and the users (who want increased access), the gatekeepers are often thought to be mere middlemen. Legally, they are just that: by complying with the safe harbor regulations, internet service providers and content hosts absolve themselves from any responsibility. However, despite being legally innocent, do companies have a civic responsibility to do more?

The unfortunate reality of the situation is that many companies – like eBay, as Brian mentioned below – still have little to gain and lots to lose from defending the rights of their users. eBay’s VeRO program is one of a number of legal safeguards across the industry that protects the content hosts against any possible legal risk; YouTube’s content identification program serves a similar purpose, and has faced similar criticisms, most recently by the E.F.F.

That announcement, in which the E.F.F. stated their intent to pursue legal action in defense of fair use, is not the first of its kind: the McCain-Palin campaign, among others, brought up the same issue during last year’s election. After seeing a number of videos taken down due to alleged copyright restrictions, the campaign sent a letter to YouTube, noting that several “overreaching copyright claims have resulted in the removal of non-infringing videos from YouTube, thus silencing political speech.” The videos in question, which included “fewer than ten seconds of footage from news broadcasts in campaign ads or videos, as a basis for commentary on the issues presented in the news reports”, were called “paridigmatic examples of fair use” by the campaign. McCain suggested that some sort of review process would “provide enormous benefit” to the protection of First Amendment rights. (You can see the full letter at Lawrence Lessig’s site).

YouTube’s response was a resounding no. Part of their objections addressed McCain’s solution to the problem: perhaps unsurprisingly, he politicized his solution by suggesting that YouTube alleviate their logistical burdens by only reviewing videos related to the campaign. (As YouTube Chief Councel Zahavah Levine noted, “We try to be careful not to favor one category of content on our site over others, and to treat all of our users fairly, regardless of whether they are an individual, a large corporation, or a candidate for public office.”)

More importantly, though, the remainder of Youtube’s response perfectly illustrates the shortcomings of the current implementation of the DMCA. Levine noted that “Lawyers and judges constantly disagree about what does and does not constitute fair use. No number of lawyers could possibly determine with a reasonable level of certainty whether all the videos for which we receive disputed takedown notices qualify as fair use.” Thus, any sort of internal evaluation of legal risk would pose some danger to the site’s safe-haven status. “When two parties disagree,” writes Levine, “we are simply not in a position to verify the veracity of either party’s claims.” A judge’s 2008 ruling requiring that content owners consider fair use before sending takedown notices should help the situation, but (expensive) legal counsel is still all-but required to countersue. With the DMCA the way it is, companies will continue to be relucant to pick a side in the fight between copyright owners and users; without any sort of incentive to do otherwise, it’s far safer to succumb to the abuse of the DMCA takedown notices than to risk legal retribution by refusing.

Perhaps with the resources and inclination to properly persue legal action (and without partisanship obscuring the issue), the EFF will have more luck promoting fair use.