No Gallo’s Humor

Michael Hedges September 27, 2010 - Follow on Twitter

All that’s left in the turf war between new and old media is, short of a peace agreement, an end to hostilities. With fortunes in the bank and politicians in the pocket old media has, largely, failed to seize the high ground occupied by internet insurgents. Some of the old warriors still don’t get that new media is different.

Rights holders were given unsettling notice last week (September 23) when a Spanish court rejected a lawsuit against Google. Television broadcaster Telecinco, owned by the Berlusconi family media company Mediaset, sued Google over material uploaded to YouTube, which Google owns. The court ruled the lawsuit without merit because YouTube affords right holders the opportunity to have any infringed content removed.

YouTube, said the Madrid Commercial Court, “is not a content provider and has no obligation to monitor ex-ante illegal materials. Anyway, said the judges, it “is not possible to review all 500 million videos being loaded.”

Telecinco filed suit in mid 2008 because clips of American TV shows, for which it had rights in Spain, were appearing on YouTube before the shows were broadcast in Spain. Telecinco asked the court to force YouTube to prevent the clips from being uploaded and, of course, demanded compensation. Telecinco won a temporary injunction while the Spanish courts considered how Telecinco’s intellectual property rights could have been infringed.

Google declared a “clear victory for the internet” and “an important ruling in Europe on the issue of copyright.”  The Google legal department’s strategy claims YouTube is just a piece of the pipe, a rather dumb piece that only hosts stuff. Google has again fended off charges of pirating copyright material.

“The ruling recognizes that YouTube is merely an intermediary content-hosting service and therefore cannot be obliged to pre-screen videos before they are uploaded,” said a Google spokesperson after the decision.

The judges also told Telecinco to pay Google’s court costs. Telecinco will appeal. Everybody appeals.

US media conglomerate Viacom said (September 8) it would appeal a court judgment setting aside its infringement suit against YouTube and Google. A US Federal District Court rejected in June Viacom’s infringement claim citing the “safe harbor” provisions of US law  - the Digital Millennium Copyright Act - that makes rights holders responsible for informing Website owners of the presence of infringed material.

Google, however, hasn’t won them all. A court in Hamburg Germany found Google liable for infringement (September 7) for videos of singer Sarah Brightman that had been uploaded to YouTube. A warning not to upload copyrighted material was “not enough to relieve YouTube of the legal responsibility for the content,” said the court, “especially because the platform can be used anonymously.” Google is appealing.

Obviously, what we have here is a lack of harmony. There is general legal agreement that piracy – taking something that doesn’t belong to you – is bad. And there is general legal agreement that owners of intellectual property have rights. After that, things get merky, particularly when mixed with the astounding rise of a technology used by and relied on by hundreds of millions.

Into that fray comes the European Parliament (EuroParl), which adopted (September 23) a non-binding recommendation to the European Commission for strict defense of intellectual property rights up to and including civil penalties for illegal downloaders.

“The European Parliament,” said the report authored by French MEP Marielle Gallo,” “does not share the Commission's certitude that the current civil enforcement framework in the EU is effective and harmonized to the extent necessary for the proper functioning of the internal market.”

“Online piracy is an infringement of copyright and causes serious economic damage to artists, to creative industries and to all those whose jobs depend on these industries,” said the report, tipping its hand to the music industry, which has only barely come to grips with iTunes. The Gallo Report calls for harmony in the diverse European copyright rules to “make it easier for European consumers to buy legally offered content, so as to increase legal downloading in the EU. iTunes, for example, must operate separate portals in each country.

Getting the political message, EC Internal Markets commissioner Michel Barnier told MEPs “an action plan on counterfeiting and piracy” would come later this year.

Music industry trade group IFPI along with musicians and actors unions “welcomed” the Gallo report – Report on the Enforcement of Intellectual Property in the Internal Market. “Piracy is a major threat to jobs in Europe and it is a direct obstacle to legitimate enterprise in the music, book, film and other sectors,” said the IFPI statement. “The Parliament has recognized that governments cannot stand by in the face of this threat.”

Unions “are satisfied that a majority of members of the European Parliament acknowledge that copyright and neighboring rights are as relevant to creators in the digital world as they are in the analogue environment," said a joint statement from the International federation of Musicians (FIM), the International federation of Actors (FIA) and UNIMEI Global Union for Media, Entertainment & Arts.

Others, mostly civil libertarians, were less than thrilled. “This is an open door for a private police on copyright issues and private justice on the Internet,” said French MEP Françoise Castex, quoted by EurActiv.com (September 23). Several observers and MEPs see the Gallo Report as opening the door to pan-European rules on the internet similar to the French Hadopi Law famous for its “three strikes” provision cutting off internet service for those individuals who might send too many files to friends by email.

“Publishers would have an arrangement with providers (ISPs) to penalize Internet  users, for example by restricting their bandwidth,” suggested Jeremie Zimmermann, representative of online users advocate La Quadrature du Net. "This would happen outside the court system. For us it's unacceptable.”

M. Caxtex worries that “assimilating not-for-profit file-sharing to counterfeiting” millions of internet users will be “criminalized.”

“By doing so,” he continued, “they are turning artists against their own audiences, without providing creators and workers from this sector with a more promising economic future.”

That is, of course, the heart of the matter. Theft is theft. Rights are rights. But the “more promising economic future” comes from allowing new media to mature.

See also in ftm Knowledge

Intellectual Property Rights - Yours, Mine and Ours

Every content creator and user has a vested interest in intellectual property rights, the rules meant to set a course for fair distribution of art, music, video and the written word. Agreement on those rules is not absolute. This ftm Knowledge file explores what's yours, mine and ours. 42 pages PDF (March 2011)

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Music & Media - Changing Scene

You can hear the pulse of life in music, they say. For the music industry that heartbeat is frantic as business models disappear and reappear. Media has loves music, too, just not in the same ways. This ftm Knowledge file covers the tale of two worlds intertwined. 78 pages PDF (September 2010)

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The Privacy Issue

The privacy issue touches every aspect of media. From consumer protection and the rights of individuals to news coverage privacy is hotly debated. New media and old media stumble and the courts decide. ftm offers views from every side of the Privacy Issue. 37 pages. PDF (April 2010)

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Google Is...

Google's leaders say their goal is to change the world. And they have. Far more than a search engine, Google has impact over every media sector and beyond, from consumer behavior to broadcasting and advertising to newspapers. That impact is detailed in this ftm Knowledge file. 63 pages PDF (February 2010)

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