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What’s the Most Important Right
Creators Have?
(Originally published as “How Big Media’s Copyright Campaigns Threaten
Internet Free Expression,”
InformationWeek,
November 5, 2007.)
Any discussion of “creator’s rights” is likely to be limited to talk
about copyright, but copyright is just a side-dish for creators: the
most important right we have is the right to free expression. And
these two rights are always in tension.
Take Viacom’s claims against YouTube. The entertainment
giant says that YouTube has been profiting from the fact that
YouTube users upload clips from Viacom shows, and they demand
that YouTube take steps to prevent this from happening in the
future. YouTube actually offered to do something very like this:
they invited Viacom and other rightsholders to send them all the
clips they wanted kept offline, and promised to programmatically
detect these clips and interdict them.
But Viacom rejected this offer. Rather, the company wants
YouTube to just figure it out, determine a priori which video clips
are being presented with permission and which ones are not.
After all, Viacom does the very same thing: it won’t air clips until
a battalion of lawyers have investigated them and determined
whether they are lawful.
But the Internet is not cable television. Net-based hosting
outfits — including YouTube, Flickr, Blogger, Scribd, and the Inter-
net Archive — offer free publication venues to all comers, enab-
ling anyone to publish anything. In 1998’s Digital Millennium
Copyright Act, Congress considered the question of liability for
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