The Wall Street Journal is hosting a debate between Berkman Center director John Palfrey and University of Texas economics professor Stan Liebowitz on the issue of whether Google is assuming significant copyright liability with its proposed acquisition of YouTube.
At one point, Professor Liebowitz asserts that there is greater efficiency and social utility in requiring Google to police infringements on YouTube rather than placing that burden on individual copyright holders:
I don’t see how it can be advantageous to society to have multiple copyright owners all searching over thousands of files to find those which are violating their particular copyrights when Google can do it with but a single search. The pure duplication of effort would seem to put the efficiency ledger firmly on the side of having Google do the search. The fact that only Google knows which files are most downloaded, and which, therefore, are most valuable, also points to why Google should be doing the search. … [It] certainly seems socially wasteful to force the copyright owners to do the searching, and if Google want to be held to a higher standard (“do no harm”) it should undertake this task on its own. Even law is supposed to take the public welfare into account, from time to time.
Putting aside the snarky closing jab at the law, this analysis seems off-base in two other important respects.
First, Google/YouTube has more information about what videos are being posted and downloaded, it is true. But the rightsholders are the ones who have information about the copyrights in question. Google can tell that a video is popular, but there is no central registry for Google to consult to determine (1) whether elements in a video in fact are under copyright (as Palfrey notes, much of YouTube content is original creative work originated by the people who post the videos); (2) whether the video maker might have a legal right to use the content (including but not limited to Creative Commons licenses or fair use); or (3) whether a rightsholder might choose, for its own purposes, not to enforce the copyright — maybe two million downloads of a cult-classic video using a cheezy song is a viral marketing bonanza that the rightsholder believes will yield more revenue in the long-run.
Second, copyright holders already have the burden to police infringements in low-tech situations. Provisions of the law such as special statutory damages are justified precisely because there is an expense to enforcing the rights that rightsholders must bear and that we wish to help offset. More broadly still, rights don’t just enforce themselves — property rights, constitutional rights, contract rights, you name it. Aggrieved parties enforce their rights. They sue (or they threaten to sue), and if they prove that their rights have been compromised they win relief. Why should this be any different?
It’s definitely worth reading the whole debate…