Update — From reader comments below it sounds like many people think I am advocating some specific behavior from either YouTube or President Obama. That’s not true. I’m not proposing that either DO anything. I’m just explaining what I believe is happening and why, which is pretty much all I ever do around here if you haven’t noticed. I’m neither trying to hobble the First Amendment nor take any political or religious stand whatsoever. If people think I am doing ether, well they aren’t reading very carefully at all, because it simply isn’t in there. So settle down, everyone.
Moving on to any readers who have a burr under their saddle because I used the name Muhammad in the title of this column, there aren’t any written rules for using that name. The subject of Mohammad’s name doesn’t appear in the Quran or in the hadiths, the prophet’s sayings. According to the hadiths, deeds are judged based on a person’s intent, so whether an act is an insult ultimately depends on motive and mine is just to explain a part of what’s going on.
Let’s everybody beat up on YouTube for not pulling that offensive anti-Muslim video that is infuriating people around the world. No, wait. As disturbing as this story is let’s instead take a moment to try and figure what’s really happening and why YouTube and its parent Google are behaving this way.
It’s easy to blame Google’s algorithmic obsession for this mess, but I don’t think that’s at work here at all. Yes, Google is very good (which means very bad in this case) at blaming one algorithm or another for pissing-off users. Google customer support is, in a word, terrible for this very reason, and it often seems like they don’t even care. But this case is different, because it has less to do with algorithms than it has to do with intellectual property laws.
Google lives and dies by its IP and YouTube in turn lives and dies primarily by the Digital Millennium Copyright Act (DMCA), specifically the Safe Harbor provision of that act that allows YouTube to simply pull infringing content on the demand of the IP holder rather than have to pay a $25,000 penalty as they’d do in, say, Australia.
But the DMCA Safe Harbor provision comes with certain rules which require a generally hands-off approach to content censoring by the carrier, in this case YouTube. The DMCA puts the onus on the IP holder to tell YouTube (and all YouTube competitors) to pull down infringing content. We do this every day, by the way, with pirate copies of Steve Jobs — The Lost Interview. Without eternal vigilance my children won’t be able to afford college.
YouTube has been maintaining that the video in question doesn’t violate its basic rules for inclusion, so they can’t (or won’t) bring it down. Making an exception might set a legal precedent, their lawyers are worrying, and threaten the Safe Harbor. It would also lead to an infinitely expanded problem of people demanding YouTube pull videos just because they find them offensive.
I don’t think it is extreme at all to suggest that if YouTube sets a precedent pulling this anti-Muslim video that Kevin Smith’s movie Dogma, for example, could come under attack by Catholic groups, as it did when that movie was released.
But notice that YouTube has pulled the offending video from Egypt, India, and Libya. That’s just a confirmation of the DMCA-compliance strategy described above. YouTube can pull the video in those countries because the DMCA is meaningless there. It’s in the USA and other countries with similar laws that the video has to stay up in Google’s view.
It’s not that they are deliberately being pricks about this, their lawyers are telling them to do it.
But there’s a logical endgame here and I find it interesting that it hasn’t already been played.
More than 30 years ago when I was working as an investigator for the Carter White House I butted heads with AT&T, seeking phone records. Lawyers for Ma Bell said they couldn’t give me what I was asking for because it would violate privacy provisions of their customers. But they’d be happy to comply if I’d just get a proper subpoena or a court order, which I did. AT&T lawyers, in fact, gave me a sample subpoena to use.
Something similar is happening here I’m sure. President Obama has asked YouTube to take down the anti-Muslim video just as I asked AT&T for phone records, but they’ve demurred (just as AT&T did) for very specific legal reasons. The key distinction here is that President Obama and I asked for compliance.
I’m fairly certain that Google would comply with a Presidential order, because such an order would be written to indemnify YouTube under the DMCA. To do this properly they have to be made to do it, and have probably been expecting that all along.
So the bigger question is why hasn’t the President issued such an order? There could be any number of reasons for that — everything from not wanting to look weak to other nations to potential ramifications for the upcoming election. My best guess is the White House is trying to get the producers of the movie to pull it, themselves, so far without success.
I have no insight into Presidential logic here. But if this crisis develops much further I’m quite confident we’ll see in the news a Presidential order.