Microsoft and Viacom show the way to sensible copyright enforcement

We need to encourage certain forms of piracy, as Microsoft and Viacom suggest.

Matt Asay Contributing Writer
Matt Asay is a veteran technology columnist who has written for CNET, ReadWrite, and other tech media. Asay has also held a variety of executive roles with leading mobile and big data software companies.
Matt Asay
2 min read

Over the weekend, Larry Lessig penned a cogent argument for a common-sense reading of copyright law. The problem, he writes, is that in our attempts to quash peer-to-peer file-sharing (stealing), we're wreaking a huge amount of collateral damage on those that remix content.

In other words, all piracy is not created equal. Some, like the remixers, should be protected by US Fair Use doctrine:

We are in the middle of something of a war here -- what some call "the copyright wars"; what the late Jack Valenti called his own "terrorist war," where the "terrorists" are apparently our kids. But if I asked you to shut your eyes and think about these "copyright wars," your mind would not likely run to artists like Girl Talk or creators like Stephanie Lenz. Peer-to-peer file sharing is the enemy in the "copyright wars." Kids "stealing" stuff with a computer is the target. The war is not about new forms of creativity, not about artists making new art.

Interestingly, Microsoft and Viacom may have already found one great way to manage this: charge for commercial use of their intellectual property, but not amateur use.

Microsoft's policy is focused on open-source software, in which it covenants not to sue unpaid open-source developers. This is incompatible with open source, but it may apply more favorably to the entertainment industry.

Most consumers aren't in the habit of dropping open-source code into their own open-source projects, but many people (including myself) routinely take music or video owned by the major entertainment companies and drop it into family videos. Viacom, as Lessig points out, "has effectively promised to exempt practically any amateur remix from its lawyers' concerns." In other words, it has gone down the road that Microsoft tried to pave for open-source developers.

We need this common-sense approach to remixing content on the Web. We need to encourage creativity, not stifle it. The entertainment industry isn't going to lose any money if my kids' soccer team sees a slideshow that includes music from The Shins. In fact, it might actually gain money as the kids go out and buy more music.

This policy encourages exploration and adoption of new music. Can we please clear out the lawyers for a few minutes so that we get common-sense copyright enforcement?