Michael Fricklas is Viacom's general counsel, and it's his job to oversee the company's legal efforts, including its $1 billion lawsuit against YouTube. When people talk about Big Content, they're talking about people like Fricklas.

So it might be surprising to watch him tell a class of Yale undergrads this month that suing end users for online copyright infringement is "expensive, and it's painful, and it feels like bullying." While the recording industry was big on this approach for a while, Fricklas certainly understands the way it came across to the public when some college student went up against "very expensive lawyers and unlimited resources and it felt like terrorism."

Customers "need to be treated with respect," he added, and that respect extends even to DRM—much of which has been "really bad."

When it comes to Big Content's copyright stances, Fricklas is on board with some of the criticisms leveled at the content industries—and he doesn't want to take your mashup down. "Even as part of a big company, and as a consumer, and as a guy who loves technology and loves gadgets and all the interesting things that are happening on the Internet, I kind of agree with [the criticisms]," he said. "I actually care a lot about fair use What we're really focused on in our business right now is the exact copy."

Fricklas points to the recent MTV music awards, where Kanye West rushed the stage, grabbed the mic, and delivered his Internet-meme-producing-line, "I'mma let you finish, but " Viacom quickly uploaded the evening's footage into the content recognition engines of sites like YouTube, which can then block exact uploads of the same footage or allow rightsholders to monetize it with ads. Viacom used the tool to block copies of the clip, but not without offering a solution of its own: the clip was hosted on Viacom websites and was embeddable and linkable.

The company wanted the clip to go viral and wanted people sticking it on their blogs but it wanted them to use the official Viacom-hosted version, and it made it as easy as possible for people to do so. (Viacom was happy to link to parodies of the clip in question, even when they were hosted on different sites and used bits of the original clip.)

Fair use, not suing your customers, providing the content people want in the way that they want it—it sounds pretty good. So why are we in the middle of what copyright scholar William Patry calls the "Copyright Wars"?

Kinder, gentler, but still lovin' DRM



Part of the answer is that "Big Content" is of course a convenient fiction; every creator and company has a different outlook, is staffed by different individuals, and relies more or less heavily on exclusive rights under the Copyright Act.

Viacom, for instance, creates copyrighted works every day, but it's also a heavy "fair user." Consider The Daily Show, for instance, and think about just how much of its daily show relies on video footage from other organizations. Fricklas even showed a spoof movie poster that Viacom had done years ago—for which it was sued by famous photographer Annie Leibowitz—and with which it eventually prevailed in court, claiming parodic fair use.

The company also runs various user-generated content sites of its own, so it has a direct stake in many of these copyright issues from both sides of the question.

There are plenty of copyright maximalists still in the business, those whose mantra is "more copyright is always better," but Fricklas insists he's not one of these. But he's also no copyfighter, however, and he remains a vigorous backer of tools like DRM and graduated response. While his brief talk was hardly a detailed explication of his thought on all issues copyright-related, it did illustrate why tensions exist between consumers and even forward-thinking content creators.

DRM

While bashing the experience of many earlier DRM schemes, Fricklas is a firm believe in the basic concept, saying that it allows consumers to have experiences they could not have without DRM (or not at the same prices).

The classic cases are 1) online content rental (usually movies) and 2) online streaming (audio and video). While DRM has largely vanished on paid audio downloads, it still exists in many streaming and subscription services. Record labels aren't keen to allow users to pay for a month of music, download 80,000 tracks, and then stop subscribing.

Movie rentals and on-demand streaming (iTunes, Hulu, Netflix, Epix, etc.) pose similar challenges, and all use some form of encryption to keep a bit of control over content. Sure, it's all available on the Intarwebs, but some percentage of people won't be willing to locate and grab all the same files from P2P, even though they might be willing to run a simple, local streamripper.

Fricklas argues that DRM is essential to these kinds of rental models, and we're willing to concede the general point, when it's done well. (Despite using Netflix and Hulu regularly, I have yet to be impeded by any sort of encryption or DRM, and there's no real issue about making backup copies when the content lives in the cloud.)

But consumer frustration with DRM isn't generally about rentals; it's about ownership, and video producers have been unwilling to remove DRM either on physical media (in fact, Blu-ray's gotten much tougher) or digital downloads. This certainly isn't a "new" business model in any way, and DRM on these products does in fact butt up against consumer rights (fair use) and expectations in obvious ways. Ripping a DVD to an iPod, using an external Blu-ray drive to load a film onto a PC for a long trip, making backup copies of those expensive Disney films your kids love, using a film clip in a mashup or piece of criticism—these are all rendered difficult or impossible to do legally by DRM. What is content protection "enabling" here?

One argument sometimes heard from rightsholders is that DRM applied to ownership models still "enables" other models like rental because unencrypted Blu-ray discs (for instance) would be easily pirated. And once pirated, they exist all over the Internet, and people can simply download them for free instead of dropping $3 on an online rental.

But the films inevitably make their way to the 'Net regardless of such protections (and often in advance of the "protected" versions even being offered for sale at all), so it's hard to see how this applies. A comparison with the music business is instructive here; after pushing hard for DRM, the industry eventually abandoned it once it realized that the system made it overly dependent on the dominant DRM provider (in this case, Apple). And the digital physical format for music, the compact disc, has gone unprotected for a couple of decades.

The result? Streaming and subscription models continue to proliferate at places like Rhapsody, Spotify, Last.fm, Lala, and the Zune store. The "DRM enables new business models" idea may have some truth to it, but the movie and video businesses are more than happy to apply tough DRM to their old-style ownership models, long after even music has abandoned the practice.

As the examples above indicate, DRM also goes far beyond copyright law in restricting what buyers can do with things like Blu-ray discs. In this sense, code trumps law, and it's a criticism that people like Fricklas recognize (it appeared on one of his slides, but was not discussed in the talk). Their answer—do things like offer digital, computer-ready copies of films on Blu-ray and DVDs—is helpful, though it simply swaps one DRM scheme for another.

Graduated response

Another area of tension between consumers and rightsholders is graduated response, sometimes referred to as "three-strikes" policies that sanction those accused of repeat copyright infringement online. While the content industries like to tout graduated response as a kinder, gentler way to handle these issues, the worldwide public hasn't been sold on the plan. The European Parliament voted several times to ban such schemes unless they had judicial oversight, while France's attempt at passing a graduated response law was defeated once in the legislature and once by the Constitutional Council before finally being passed. New Zealand had to scrap its three-strikes plan and start over after resistance from users and ISPs, and the UK is in the midst of a furious row over the idea. Graduated response has never been introduced in Congress, and no major ISP has agreed to adopt the approach voluntarily.

Still, Fricklas is big on the idea. It's definitely a saner solution to the issue than hauling college kids into federal court, and feature sanctions "more proportional to the harm." (This is certainly debatable when it comes to France-style disconnections and blacklists, however, especially on family accounts.)

And Fricklas wants to make sure that there are rights of appeal, since the process can sometimes be a bit too "guilty until proven innocent." But he'd like to see it handled in a "non-court way" through an ombudsman or arbiter, not through a judge. Being able to appeal the issue to a judge would certainly increase everyone's costs and could result in more of the same spectacle that Fricklas hopes to avoid, but Internet access has become a fundamental utility. When sanctions, and especially disconnection, are on the table, issues of due process and law become critical (and even France's scheme now has judicial oversight of the final step, disconnection).

This is especially true given what Fricklas said earlier in his talk when he was bashing the record industry for suing individuals: IP addresses can be spoofed, mistakes can be made, and even with an IP address it's often not possible to tell who actually did the sharing. For all these reasons, a mandatory graduated response with Internet disconnections and no judicial right of appeal will remain one of the areas on which consumers and rightsholders just can't see eye-to-eye.

The whole talk is worth watching (it's 37 minutes) if you want to better understand Big Content's copyright perspective from one of its top practitioners. Of special note is the segment on Viacom's "innovation," where Fricklas defends the company against charges often made against copyright owners that they are all but incapable of doing anything new and interesting.

It's also a good reminder of places where consumers and the content industry part ways, and why the Copyright Wars continue to be fought.

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