YouTube walking the copyright minefield

May 8, 2007

News: So now there are 3 copyright lawsuits filed against YouTube:

(1) Robert Tur’s suit in California for the Reginald Denny beating video (with a request by Viacom + NBC Universal to file an amici brief).

( 2) Viacom’s suit in New York (for Daily Show, Colbert Report, Sponge Bob, South Park, MTV clips, etc.)

(3) English Football Ass’n Premier League (soccer division) and Bourne Co. (U.S. music publisher) suit, with a request to certify a class action, in New York.

Analysis: There’s a possibility that (2) + (3) could be consolidated before the same judge. All 3 will test the DMCA safe harbor provision, Section 512. YouTube does have some respectable arguments on its side that it falls within the DMCA safe harbor (these will be tested in court), but things could get potentially more complicated as it attempts to institute a revenue sharing system with select YouTube director/partners whose videos apparently will be synched with advertising on the side of YouTube’s website. As Adario Strange suggests on Wired’s blog, and Mark Sullivan on PC World’s blog, things may get dicier for YouTube if ad revenues are being generated from any infringing content posted by YouTube’s new director/partners.

EFF’s Fred von Lohmann identified this lurking issue a while back:

“Here’s where things might get a bit sticky for YouTube. Some have argued that this may restrict the kinds of advertising business models that YouTube (and other video hosting services) might want to pursue, as ads tied too closely to an infringing video could be viewed as creating a “financial benefit directly attributable to the infringing activity.”

“Some pages on the site already feature advertising, and all signs are that YouTube will want to rely on advertising to fuel at least part of its growth. So far, YouTube has charted a cautious course, putting ads only on search results pages, rather than on the clip pages themselves.

“YouTube will have to walk a careful line as it stumbles toward a business model. Losing the protection of the DMCA safe harbor could expose it to lawsuits that could be extremely expensive, no matter how they ultimately come out.”

Fred’s exactly right here. So far, YouTube seems to be trying to walk that careful line because it has selected only a few directors/partners from its users.  If those select few are creating content of their own (as they presumably are), then that growth of user-generated content will bolster YouTube’s position and show further how its business is built on encouraging legitimate content.  So this move of revenue sharing can be a plus for YouTube in defending itself from the lawsuits, but it can also be a negative if the director/partners are not abiding by their terms of use and engage in copyright infringement.