Tim Wu has a great piece on Slate, arguing that YouTube greatly benefits from the notice and takedown processes provided by the much (and rightly) reviled DMCA. Much as he’s done with net neutrality issues, Tim’s done an excellent job of describing the crux of the issue:
[M]uch of the copyrighted material on YouTube is in a legal category that is new to our age. It’s not “fair use,” the famous right to use works despite technical infringement, for reasons of public policy. Instead, it’s in the growing category of “tolerated use”—use that is technically illegal, but tolerated by the owner because he wants the publicity. If that sounds as weird as “don’t ask, don’t tell,” you’re getting the idea. The industry is deeply conflicted about mild forms of piracy—trapped somewhere between its pathological hatred of “pirates” and its lust for the buzz piracy can build.
Read the whole thing for a short and illuminating history of the laws and policy arguments that brought us to this point.
If you’re as interested in this as I am, jump over to Tim’s site, where a conversation on the concept of “tolerated use” seems to be developing.