News: The Wall Street Journal asks, Does YouTube Make Google a Big Target for Copyright Suits?, with a back-and-forth email discussion between Jon Palfrey of the Berkman Center and Stan Liebowitz, an econ professor at UT.
At one point, Liebwowitz wrote: “The fact that YouTube is generating revenues from these files may well nullify the safe harbor provisions of the DMCA mentioned by John. In the Napster case the judge told Napster that Napster needed to remove all works for which they did not have the rights and Napster used filtering software that was not perfectly effective (I personally think perfection is an unreasonable requirement). YouTube could similarly be required to police infringements.”
Palfrey later responded: “Google should be able to avail itself of the DMCA’s broad safe harbor for copyright infringement under U.S. law. Whether or not Google makes money on the content is not, and should not be, the issue at stake here. The issue is whether or not Google takes its job seriously in responding to genuine demands to take down copyrighted materials from the YouTube service. To date, YouTube has been a model citizen in this regard: they’ve gone out of their way to license content from big content owners, they’ve been working on fingerprinting solutions to help content owners track their copyrighted materials, and they’ve sought to make it easy, expedited process for submitting a complaint about copyright violations. They’ve even made room for Diddy to have a channel, to which the artist has uploaded BadBoyRecords material to YouTube. Google needs to be accountable to copyright holders. If they are, they should be in the clear for the YouTube service. It’s about creating an accountable Internet.”
Analysis: This is a very interesting discussion. I think both Liebowitz and Palfrey are wrong in some key respects here.
First, I think Liebowitz is factually wrong in his assertion that YouTube is making money on infringing files. YouTube doesn’t. There are no revenues going to YouTube based on some third parties uploading an infringing file onto YouTube. The only way YouTube appears to be making money is with advertising and negotiated deals with legitimate businesses.
Second, I think Palfrey is wrong in suggesting that it doesn’t matter whether YouTube does or does not benefit financially from infringing files. Under the DMCA safe harbor provision, the Internet service provider must NOT receive “a financial benefit directly attributable” to the infringing material, in order to be eligible for the safe harbor. Incidentally, though, based on my first point, YouTube should be able to satisfy this requirement.
YouTube and the DMCA safe harbor from copyright lawsuits