YouTube assures the court in their copyright case that it will be installing the latest filtering technology.

Is this a civil liberties issue? Some time back, Fred VL argued--even assumed--that it was. Looking at the issue closely, though--and the case law--it seems that it

is not. Let's start with the basics. The Bill of Rights restricts the government, not private parties. The government cannot order a newspaper to keep silent (with rare exceptions); the editor of the newspaper may decide not to print a piece, however. Or the editor of a newspaper may be ordered by a court not to print a piece--because it violates another paper's copyright. The rights being asserted are private, and it should not matter for purposes of the analysis that a court was involved; the court is merely enforcing private rights, not acting for the government. (The case law is muddled here by outlying decisions involving court enforcement of racially restrictive easements--these are not typical, however). When YouTube uses technology to filter, either because the entity decides to on its own, or under pressure from copyright owners asserting their private rights... it falls within the category of the private right "not to speak," rather than under the category of government censorship.

What about privacy rights? That argument is also a non-starter. YouTube creates the forum, and must do so in a way that respects others' rights. Essentially, all users are to YouTube (and other users, and anyone else online) is a set of data points, anyway--fussing about what sort of data exactly is involved can quickly become silly. Assuming reasonably competent design and administration, technological filters are rather less likely to gossip about what they discover than human monitors.

If the question were whether YouTube's posters had violated not copyright, but privacy rights (posting photos taken up women's skirts, say) or the right against assault (posting child porn), exactly arguments that filters designed to detect such stuff violated civil liberties could also be made--but it isn't likely they would be. Held up against laws that resonate with more primitive moral codes, that civil libertarian concerns are misplaced and contradictory would be obvious even to civil libertarians. When one asserts that technology to help enforce copyright violates civil liberties, one is relying heavily on the assumption that copyright is inferior to these other substantive rights. Which is an argument one can make, of course... but hardly something one can simply assume; if made straightforwardly, it would condemn *any* sort of attempt to enforce copyright, not just filtering. The filtering is a red herring, an attempt to piggyback on people's tendency to be suspicious of new technology as bad in itself.

All for now.

posted by Solveig Singleton @ 10:01 AM | DRM & Watermarks, etc., Enforcement & Remedies, Liberty and IP, Privacy and Security

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