I’ve gone on the record opposing filesharing, and I’ve also been harshly critical of MySpace’s policy of letting minors post information in the Internet. So a lawsuit accusing MySpace of filesharing is a slam-dunk right? Universal just filed such a complaint, alleging that the site encourages people to upload copyrighted material.

The problem lies in that MySpace users, particularly those who sign up as “bands” (as I did to upload music I really did write and own the copyright to), can put music and videos on the Web site. Some of them have chosen to put up others’ copyrighted work.

The reason I think the suit is bunk — and in this rare case the courts might even get it right — is that there is a very limited duty to police in America. For VCRs that could illegally record stuff, but could also be used for legitimate purposes, the courts ruled companies could not be held liable for their customers’ infringement. It took a much more egregious product, Napster, to get shut down. Grokster lost only because it was “promoting its use to infringe copyright.”

MySpace is loaded with legitimate use of the feature, including my own. I have never come across anything from MySpace that encourages infringement. To the contrary, when uploading, you have to click a box stating that the material is your own.

And even if the site has a duty to police beyond not encouraging bad practices, there’s an incredibly strong argument they’re meeting that duty. From the article:

“Earlier Friday, MySpace said it was testing technology aimed at enabling content owners to flag videos on the site that they find contain unauthorized copyrighted material. The flagged content is then removed by MySpace. The company expects to roll out the feature in a few weeks.

“Currently, MySpace takes down content from its users’ pages when it receives a notice from a copyright holder.

“Last month, MySpace began using ‘audio fingerprinting’ technology to block users from uploading copyrighted music to the site. That technology works by checking audio files against a music database from Gracenote Inc.”

That certainly doesn’t sound like negligence to me. The responsibility here lies with the users, not the site, just as it did with the VCR lawsuit years ago.

Robert VerBruggen blogs at http://robertsrationale.blogspot.com.