At pretty much exactly the same time that my colleagues Jim and Solveig were holding a Congressional Seminar on the muddled mess that is Sec. 512 of the DMCA and its notice-and-takedown regime, I was participating in a panel discussion on almost exactly the same topic at South by Southwest. Moderated by IP attorney and industry veteran Chris Castle, the panel also featured Register of Copyrights Marybeth Peters, Snocap's Ali Aydar, Recording Artists Coalition's Rebecca Greenberg, Songwriter's Guild of America's Rick Carnes and Lions Gate's Jay Faires. My primary focus: Is copyright opt-out or opt-in?

I couldn't come close to the mastery of Marybeth as she pointed out how YouTube doesn't fit the profile of the type of company envisioned to be covered by Sec. 512 of the DMCA. She was speaking for herself, not in any sort of capacity that could have a bearing on the Viacom suit, but I was struck by how much in line the complaints in the Viacom suit echoed her general reading of the DMCA. That does not bode well for YouTube, because MaryBeth has been at the copyright game for 42 years and knows a thing or two.

What I attempted to do was be the non-lawyer and convey to the audience how the YouTube model has shifted copyright. I first asked how many in the audience had e-mail addresses. Everyone raised their hands. How many get spam? I asked. All hands stayed raised. E-mail is opt-out, I noted; I can send you e-mail until you tell me to stop. Copyright has always been opt-in; the creator has control until they give it up. Fair use offers narrow exceptions to this, but the YouTube model goes far beyond any fair use; it allows a complete taking of the work and shifts the entire burden of discontinuing future use onto the copyright owner.

Marybeth agreed with the opt-in/opt-out analogy, and Rebecca compared it to a whack-a-mole game. Ali pointed out that his company and others have developed technologies that mean sites like YouTube could continue to operate while largely filtering out copyrighted works. This was an important point. Everyone commenting on the Viacom complaint has focused on its $1 billion claim (actually small when you consider the number of infringements and the number of times those infringements were viewed). To me the far more interesting aspect of the suit is its request for a "permanent injunction requiring Defendants to employ reasonable methodologies to prevent or limit infringement of Plaintiff's copyrights." The techology exists now, and if YouTube were required to adopt it for Viacom's works, it would be wise for it to do it for others' works as well, to avoid similar suits.

I mention above the reasonableness of the financial amount being sought, but my analysis didn't include the amount it costs to file the takedown requests. Lions Gate has a whole team of people who file such requests daily, and it is quite expensive and time-consuming, Jay said. Surely it was not the intent of Congress to impose this burden on copyright owners, or to create an outsourcing industry of people who will send the daily faxes (YouTube won't take e-mail takedown requests). Jay also told a disturbing story. He spoke of a venture capitalist he met recently who has $200 million to invest. Based on the $1.65 billion YouTube got, he feels Silicon Valley money is going to be made in copyright infringement. So he is investing $2 million each in 100 different companies, each of which is an infringer. I guess the business model is to sell for big bucks before you're sued, and let the liability pass to your purchaser.

The best lines, however, were delivered by one of my all-time favorite congressional witnesses, Rick Carnes. Noting that an opt-out system means creators don't get to negotiate use of their works, or compensation, he said: "You must be present to win." When the notion of exposure came up -- that having your work appear on YouTube can lead to exposure -- the consensus of the panel was that the artist should get to choose if that exposure is wanted. Rick took it a step further: "People die of exposure."