PLEXUSITY by Marie Germain

Well the moment has arrived. A few days ago Viacom demanded that YouTube remove 100,000 videos from its service, throwing down the gauntlet with 100,000 spam messages to cease and desist. For producers and artists whose revenues have been altered by digital squatting, there seems to be no end in sight. Distribution is everything right now. Just last week content producers in Hollywood threatened to hold back delivery to theatres in Canada if they could not get control over copying while movies play; apparently Canada (according to US) is mecca for this practice. Content producers are digging theirs heels deeper.

In a new clever move last January, YouTube has offered to compensate home grown video producers for their material. That will prevent claims from rising, perhaps class actions, to countless numbers.

Frankly, this is not about whether YouTube or other services have erred; it is about a new digital economy defining itself. Growing pains. There will be ambulance chasers who will enter the courts with old world patent and copyright laws for windfalls notorious of  large court judgments. And it will be the Googles and the Yahoos they will pursue. Maybe even the Flickrs and Technoratis.  But strangely enough this problem cuts both ways.

There is new impetus for claims against the common user via EULA (End User License Agreement), a contract between end user and producer of software. For software purchased at retail these are referred to as “shrink-wrap agreements” and on-line, “click through agreements”. Few read them following through with agreement by merely using or clicking “I agree” on-line. The agreements are ridiculously long and their meaning, difficult to comprehend. But, there is increasing debate about whether these agreements are enforceable.

Some of these agreements allow the licensors to snoop into the users’ computers and in some cases to remove existing software. In many cases the user cannot even “criticize” the product. This goes completely against the new consumer democracy all tech players purport to be purveyors of. Is this not the height of hypocrisy? Yet, EULA is now on steroids, ”overwritten” with TOS (Terms of Service ) contracts,  to lock-in and control innocent users. We know the corporations (and you know who you are) who indulge. Start-ups driven by VCs (who love “lock-in” software) are no stranger to this TOS practice. The relative absence of these could be a brand building feature!

In the grander scheme of things, is this wise? EULA must be reformed. Firstly, licensors must have a good hard look at their actions and recognize that they are taking basic rights under our collective constitutions away. Ambulance chasers (patent attorneys) see an opportunity; but, truly when rights in constitutional preambles come into play what are their chances? The public will become aware, perhaps stop clicking, stop buying.  It’s not inconceivable. Software producers must rely on the copyright law that protects them well enough and enjoy the benefits of their works. Et tu?

Software creators must look at their values—-publish and espouse them. In this, there is brand affection and loyalty in a sea infested with (name your predator here). Rethink.