More on YouTube + DMCA safe harbor

News:  In the past week, a few more articles have come out analyzing the potential copyright liability of YouTube.  I’ll note two of them that conclude that YouTube most likely is safe from liability under the DMCA safe harbor provision, Section 512 of the Copyright Act.

1. John Berman, ABC, Could Copyright Fight Strip YouTube of Content? 

“But just because the videos are on the site, doesn’t mean YouTube has broken the law. The Digital Millennium Copyright Act, passed in 2000, largely protects Internet sites from liability and states they have little responsibility for what people post. This legislation may be the reason that although requests have come in for videos to be removed, so long as the site complies it’s doubtful that anyone could successfully sue YouTube.”

2.  Tim Wu, Slate, Does YouTube Really Have Legal Problems? 

“Thanks to the Bells, all these companies are now protected by a ‘notice and take down’ system when they host user content. That means that if Jon Stewart notices an infringing copy of The Daily Show on YouTube, Comedy Central can write a letter to YouTube and demand it be taken down. Then, so long as YouTube acts ‘expeditiously’ and so long as YouTube wasn’t already aware that the material was there, YouTube is in the clear. In legal jargon, YouTube is in a ‘safe harbor.'”

Analysis:  Both articles are well worth a read.  They attempt to lay out in understandable terms how the DMCA safe harbor operates for websites like YouTube. Tim Wu’s article does a nice job in describing some of the legislative history behind the DMCA safe harbor, particularly the Bell telephone companies’ efforts lobbying for the safe harbor. 

I do disagree with Tim Wu, though, on his assertion that “YouTube provides a search, and maybe it could be liable for that,” a point that he repeats when trying to explain why YouTube is different from Napster:  “Napster wasn’t ‘hosting’ information at the direction of its users, but rather providing a tool for users to find and download predominantly infringing content. It may sound odd that Napster gets in more trouble for helping you find illegal stuff than YouTube does for actually hosting it. But that’s the law…”

To me, this argument seems just wrong on both the law and facts.  The DMCA safe harbor provision contains a specific subsection for location tools provided by websites (Section 512(d)).  It would be very odd if the DMCA didn’t–Google would be toast by now.  The real reason Napster did not successfully raise a DMCA safe harbor defense is that the Ninth Circuit deferred considering the issue at the preliminary injunction stage, and, unfortunately, Napster did not stay in business to see a trial.  A&M Records v. Napster, 239 F.3d 1004, 1025 (9th Cir. 2001).  Even if Napster had survived to have its defense heard by a court, it’s not clear that Napster in fact had a sufficient “notice and take down” policy in place. 

As for YouTube, this additional safe harbor for search provides another basis of immunity for YouTube’s location tools.  The safe harbor may be even stronger than described in Slate.

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