Thursday, August 9, 2007

Good free riders and bad free riders

In the five months since I first wrote about GooTube, the controversies continue over its business model based on using other people’s IP without paying them.

Someone who follows the controversies more closely than I do is Prof. Michael Madison of the law school at the U. Pittsburgh. We met at a conference in January (just I was starting the blog) and compared notes about blogging as a productivity destroyer. His “Madisonian” blog is in my RSS reader because of a high ((quality+relevance)/word) ratio. Other IP Law blogs in my reader are more familiar sites like Groklaw, which certainly have important tidbits but are less succinct in their content.

Catching up with Mike’s blog, I noticed two updates of interest to my readers (whose numbers increased last week by 25).

First, he uses an allegorical tale about “free riders” to put the GooTube business model into perspective. (That the tale happens to be true makes it even better). I’m not sure I agree with his conclusions, but the issues he raises are important (and less obvious) ones to consider as lawyers, judges and politicians try to decide how to balance the rights of GooTube and content owners. (My own view is that so far the market seems to be working — content owners are voluntarily negotiating deals with Google, although success for the Viacom lawsuit would change the prices a little).

Second, he updates the important test of the “fair use” copyright doctrine of law school instructor (and former EFF affiliate) Wendy Seltzer. Seltzer has cleverly designed an experiment (lawyers would call it a “test case”) to challenge the absolute right of a content owner under the 1998 DMCA to demand removal of their copyrighted work from a website (in this case GooTube). (See my March 28 posting for the details of the controversy).

While protecting content owner rights is important, equally important is that copyright law has long provided an exception for “fair use”. I rely on that exception every time I quote a paragraph from someone’s website or news article. Since Seltzer is using the video clip for commentary — and since it has absolutely no commercial value — in my para-legal opinion it seems like this would be an open and shut case in her favor.

Seltzer has gone another round with the NFL, and Madison dissects the NFL’s latest legal manuevering. He is a lawyer (while I don’t even play one on TV) so the value-add is not just in the news story but in his explanation of what’s going on and what the likely consequences are.

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Mike Madison said...

Thanks for reading and commenting. The post about Wendy Seltzer's case was written by my blogging and scholarly colleague Alfred Yen, who teaches IP law at Boston College Law School.

Here's the post URL.

Joel West said...

I stand corrected. I was reading the Seltzer post in my RSS reader where some of the header information is not so prominent.