NYT OpEd on Viacom v YouTube

Lawrence Lessig writes an OpEd in today's NYT discussing the role of the courts in Viacom v. YouTube. Lessig describes how the Supreme Court has traditionally deferred to Congress in terms of the limits on copyright, a practice that changed with the Grokster decision where SCOTUS crafted its inducement test that had never existed before:

But 20 months ago, the Supreme Court reversed this wise policy of deference. Drawing upon common law-like power, the court expanded the Copyright Act in the Grokster case to cover a form of liability it had never before recognized in the context of copyright — the wrong of providing technology that induces copyright infringement. It announced this new form of liability even though at precisely the same time Congress was holding hearings about whether to amend the Copyright Act to create the same liability.

The Grokster case thus sent a clear message to lawyers everywhere: You get two bites at the copyright policy-making apple, one in Congress and one in the courts. But in Congress, you need hundreds of votes. In the courts, you need just five.

With the lawsuit, Viacom is challenging the DMCA and thus must ask a court to second guess Congress' wisdom if it hopes to prevail (that is, if one believes that the safeharbor of 512(c) applies to YouTube). Complaints by Viacom that sending takedown notices for every infringing video is too onerous is a complaint against Congress, as YouTube has not created this hassle for Viacom, but the DMCA has. Thus what we have here is a party going to court to a policy set by Congress altered by a court. Another way of saying this is that Viacom is seeking some judicial activism:

Whether or not [the DMCA] made sense in 1998, Viacom believes it no longer makes sense today. Long ago, Justice Hugo Black argued that it was not up to the Supreme Court to keep the Constitution “in tune with the times.” And it is here that the cupidity of the court begins to matter. For by setting the precedent that the court is as entitled to keep the Copyright Act “in tune with the times” as Congress, it has created an incentive for companies like Viacom, no longer satisfied with a statute, to turn to the courts to get the law updated. Congress, of course, is perfectly capable of changing or removing the safe harbor provision to meet Viacom’s liking. But Viacom recognizes there’s no political support for the change it wants. It thus turns to a policy maker that doesn’t need political support — the Supreme Court.

The conservatives on the Supreme Court have long warned about just this dynamic. And while I remain a skeptic about deferring to Congress on constitutional matters, this case is a powerful lesson about the costs of judicial policy making in an area as complex as copyright. The Internet will now face years of uncertainty before this fundamental question about the meaning of a decade-old legislative deal gets resolved.