Last January, I posted a YouTube clip taken from The Andy Griffith Show. It was a charming bit where Sheriff Taylor explains to Opie that it's illegal to eavesdrop on conversations between criminal defendants and their lawyers, and how in a free society any conviction resulting from such tactics does more harm than good.
The clip has since been pulled from YouTube after complaints from CBS Broadcasting.
I see this as a huge problem with copyright law. The Mayberry video wasn't posted so users could "steal" clips from the Andy Griffith Show that they otherwise would have purchased. Its presence on YouTube wasn't going to prevent anyone who would have otherwise bought the DVD of the show from doing so. Rather, it was posted to make a political point; either to allude to a time when civil liberties were more than mere formalities, or to poke fun of those naive enough to actually believe what Andy Taylor was lecturing Opie about.
I'd argue that a pretty substantial portion of the copyrighted material uploaded to YouTube serves the same or a similar purpose. It's splicing together clips from different sources, excerpting clips, or otherwise mashing different forms of media to make a point. That point can be something grand as the wholesale erosion of our civil liberties, or something a bit more mundane, like the fact that Carlos Mencia steals his jokes .
I'll have to plead ignorance here on the DMCA and the evolution of digital copyright law. How has it come to diverge so dramatically from print copyright protections? Seems to me that posting a short clip of copyrighted material for the purpose of analysis, juxtaposition, criticism, or to make a political point ought to carry the same fair use protections as excerpting passages from a book, newspaper, or magazine article for the same purposes. Why should one be legal and the other not?
Also, if I understand the Grokster/Morpheus Supreme Court decision correctly, the Court's objection wasn't to any and all technology that could be used to violate copyright, but to the marketing and advertising the technology for illegal purposes. YouTube clearly doesn't encourage its users to violate copyright law, and in fact polices its own site for infractions.
Given that the Supreme Court has traditionally afforded political speech more protection than other forms of speech (a distinction I personally find dubious), and that YouTube has already demonstrated its value as an influential and groundbreaking facilitator of political speech , I can't help but wonder if a Google challenge to the Viacom suit might actually be successful, and lead to that rare Supreme Court decision that weakens copyright law and expands the fair use of copyrighted material.