Decoding the DMCA Safe Harbors

January 27, 2009

I have just finished writing a draft of an essay titled “Decoding the DMCA Safe Harbors.

The Essay analyzes some of the key uncertainties about the DMCA safe harbors that may figure into the copyright lawsuits against YouTube.

The Abstract:

The DMCA is a decade old, which, in Internet time, may well be closer to a century. Although the DMCA safe harbors have helped to foster tremendous growth in web applications in our Web 2.0 world, several very basic aspects of the DMCA safe harbors remain uncertain. These uncertainties, along with the relative lack of litigation over the DMCA in the past ten years, have threatened to undermine the whole purpose of the DMCA safe harbors by failing to inform the public and technology companies of what steps they need to undertake to fall within the safe harbors. In several high profile cases against MySpace, YouTube, and other Internet sites, the clarification of the DMCA safe harbors could prove to be just as important to the Internet as their enactment in 1998. This Essay has attempted to clear up two of the biggest uncertainties regarding the DMCA’s relationship to vicarious liability, and the so-called “red flags” theory of knowledge on the part of the Internet service provider. Specifically, under a proper interpretation of the DMCA, courts should (i) reject the “loophole” theory that posits that the DMCA safe harbors provide no immunity from vicarious liability at all, and (ii) require a high burden for proving a “red flags” theory by requiring knowledge of facts that show specific and “obvious” or “blatant” infringement. This Essay offers five principles for courts and Congress to consider in applying or amending the DMCA safe harbors in the future. The DMCA safe harbors should be made truly “safe” harbors, in a way that encourages greater investment in and the development of speech technologies on the Internet, all while encouraging copyright holders to share the burden of reducing infringement by utilizing the DMCA notice and take-down procedure.

You can download a copy from SSRN by clicking on this link and clicking from there the “Download” button.

UK committee says YouTube should police videos

July 31, 2008

News:  The Culture, Media, and Sport select committee in the UK has recommended that YouTube and other video sharing sites monitor their sites more proactively for inappropriate content, in order to protect kids.  (More)  Hat tip: techdirt.

Mediaset sues YouTube in Italy for copyright infringement

July 31, 2008

News: YouTube was sued again for copyright infringement, this time by Mediaset in Italy for allegedly infringing its programs in 4,643 unauthorized clips on YouTube. Mediaset seek 500 million Euros ($779 million US). More.

Analysis: YouTube already faces 2 major copyright lawsuits in the U.S. (one by Viacom for $1 billion and a class action lawsuit, both in NY). YouTube also was sued by Telecinco in Spain, and some news reports indicate that YouTube lost. The lawsuit in Italy just adds to YouTube’s headaches. The U.S. cases will test the scope of the DMCA safe harbors. I am not sure whether Spain and Italy have any comparable safe harbor.

EMI sues VideoEgg + Hi5 for copyright infringement

June 28, 2008

News: Michael Arrington at Techcrunch has the complaint filed by EMI today against VideoEgg + Hi5. Once I read the complaint, I’ll provide some analysis.

MIT Free Culture’s “YouTomb” website — tracking DMCA notices

June 3, 2008

News: One of my students showed me this nifty website founded by some bright kids at MIT.  The group is called MIT Free Culture — I take it inspired by Larry Lessig — and it tracks 230,348 videos on YouTube to see how many are removed for alleged copyright violations.  So far, 4,948 such videos removed from YouTube, presumably based on DMCA notices.

Analysis:  These are interesting numbers. Of course, we don’t know how many of these copyright claims were legitimate.  And we don’t know how MIT Free Culture chose its sample.  So, putting aside all those variables, the number of DMCA notices seem rather low — by my math, a little over 2% of the total videos in the sample.  So that suggests that a lot of the content on YouTube is not infringing or copyright holders don’t mind.

Warner Brothers v. Seeqpod

January 29, 2008

News:  Seeqpod is a search engine that locates music files on the Internet and allows you to play whatever you find on a music player that appears on the Seeqpod page.  The music is not stored on Seeqpod, as I understand it, but on third party sites that are identified in the search engine.

Warner Brothers Music has sued Seeqpod for copyright infringement.  Seeqpod will be invoking one of the safe harbors under the DMCA for search tools.  Ars Technica has an excellent discussion, as does EFF’s Fred von Lohmann.

Analysis:  I’ll have more to say after I read the complaint.

Robert Tur copyright case dismissed as he requested, over YouTube’s opposition

October 24, 2007

News: Robert Tur (of LA News Service who shot the famous footage of Reginald Denny’s beating) was the first person to sue YouTube for copyright infringement. Well, after other plaintiffs (with deeper pockets) later sued YouTube in other jurisdictions, Tur decided to have his case dismissed to join one of the class action suits in New York. That way, Tur won’t have to pay legal fees himself, but can free ride on the work of the attorneys already in the case.

In a somewhat unusual move, YouTube opposed the dismissal, basically desiring the case in California to proceed forward (or presumably have Tur’s claims completely extinguished). The district court, however, ruled in favor of Tur, allowing him to join the other case in New York. (More)

Analysis: YouTube probably felt relatively good about its chances of prevailing in California and hoped to score a first victory that could influence other courts. We’ll now see which court will be the first to decide in 2008.

For more about all the copyright cases against YouTube, visit here.

Universal sues video site Veoh

September 6, 2007

News:  On Tuesday, Universal Music sued video sharing site Veoh for alleged copyright infringement.  The lawsuit was filed in the Southern District of New York, where 2 copyright lawsuits have been filed against YouTube.  According to Wired’s account, Veoh runs a peer-to-peer network called “Veohnet,” which is different from YouTube’s architecture (YouTube stores all files on its own servers).  Like YouTube, though, it’s expected that Veoh will raise a defense based on the DMCA safe harbor. (more)

Analysis: The more copyright lawsuits that are filed, I think the greater chances that one or more of these suits will reach all the way to the Supreme Court.

Are some YouTubers overreacting to the new InVideo ads

August 24, 2007

News:  I’ve read over some of the negative comments posted by people on YouTube related to YouTube’s InVideo ad system.  Under the new system, YouTube will deploy ads that will pop-up at the bottom 20% of the video screen, lasting for several seconds.  If you click on the pop-up ad, you will be redirected to an internal ad video.  If you do nothing, the ad disappears.  Meanwhile, the original video you played will continue playing.  One thing to note:  the new InVideo ads will only be used on select “Partner” videos — the corporations and select users YouTube has deals with.

Some of the comments sent in to YouTube are filled with expletives, vitriol, and venom.  Here’s one thoughtful comment I read, though:  “‘OK by me. Someone has to pay the bills. Between users fees and advertising I prefer the latter.’ Yeah, but why does someone have to pay the bills with intrusive advertising now when they didn’t before? If YouTube originally had ads IN or BEFORE the videos, it would be just as unpopular as all the other video sites, and it would have never grown the massive user base that greedy baby boomer investors and marketers now salivate over. There is a reason young people latched on to YouTube…it offered something other than the “60% content and 40% marketing” formula that insults us from the television screen. Make no mistake- too much advertising and the real YouTube will soon be remembered as a historical curiousity; a good idea and an interesting phenomenon spoiled by greed. Don’t forget that we are here because we are tired of commercials. If YouTube doesn’t understand that or can’t support thier business in that way, then it’s time you guys found a new line of work.”

Analysis:  The comment has some force to it.  YouTube appealed to people because the videos were ad-free, and not filled with pre-roll ads so common on commercial sites.  I believe the commenter’s exactly right that people were/are tired of seeing commercials everywhere they go (except during the Super Bowl). 

But I’m not sure YouTube’s InVideo ads will ruin the original ethos of YouTube.  As I noted above, the majority of videos won’t have these ads.  One reason is for fear of copyright liability:  YouTube knows that inserting commercial ads into user videos that constitute copyright infringement will expose YouTube to a claim for vicarious liability, outside the DMCA safe harbor.  In other words, there are a bunch of unauthorized videos on YouTube posted by users.  YouTube can’t risk profiting from them with commercial ads because that would defeat any DMCA safe harbor defense for YouTube.

Veoh sues Universal Music

August 9, 2007

News:  Online video site Veoh (a YouTube wannabe) just sued Universal Music, seeking a declaratory judgment that Veoh hasn’t committed copyright infringement and falls within the DMCA safe harbor.  Apparently, Veoh anticipated being sued by Universal, so Veoh did it first.  (More from Tech Crunch)

YouTube takes down popular Smosh Pokemon video

June 14, 2007

News: YouTube has removed Smosh’s mega-popular “Pokemon” video after receiving a copyright DMCA notice from Shogakukan Production Co. Ltd. The Pokemon video was the 4th most watched video ever on YouTube, with over 24 million views. To my knowledge, this is the most popular video ever removed by YouTube under a DMCA notice. By the way, if you don’t know who “Smosh” is, it’s a pair of 20-year-olds Anthony Padilla and Ian Hecox. They are the No. 1 Most Subcribed Director on YouTube, and they have the Most Views All-Time on YouTube of any amateur or user-generated content. Smosh, in other words, is the top of the heap at YouTube.

Analysis: This is a close, perhaps questionable, call. The Smosh boys did use the “Pokemon” theme song for their video, but they seemed to me to be parodying the whole Pokemon character, with a pretty over-the-top lip synch and use of Pokemon stuffed animals.

A parody fair use is permitted under copyright law, the only question is whether too much of the copyrighted work is taken. Unfortunately, that question is determined on a case-by-case basis. And, in this case, YouTube appears not willing to risk falling outside the DMCA safe harbor, so it chose to follow the more expedient path under the DMCA of taking down the video.

If you want to see if the video should be considered a parody fair use, I believe a version is still up on Veoh and probably elsewhere on the Internet.

YouTube develops video filtering to stop copyright infringement

June 13, 2007

News:  YouTube already has audio filtering in place from Audible Magic, to help identify unauthorized music files on clips.  Yesterday, YouTube announced that it is developing its own filtering for video content.  Next month, YT will be testing the beta version of the filtering program with Disney and Time Warner, who agreed to be a part of the testing.  More here and here.

Analysis: The video fingerprinting technology would be a huge development if successful.  A lot of people mistakenly believe that such technology already exists.  It doesn’t, at least not in effective fashion.  Audio files are much easier to track (esp. through Audible Magic).  The visual video files are more difficult.  If YouTube and Google are successful in developing this new technology, concerns about copyright liability against YouTube start to diminish.  The allegations that somehow YT’s business plan is based on promoting copyright infringement on its site become even more hollow.

Suit No. 6: Country music publisher Cal IV sues YouTube

June 8, 2007

News: Another class action lawsuit has been filed against YouTube, this time by a country music publisher Cal IV, which owns rights to the songs by Faith Hill, Tim McGraw, and others. (More)

Analysis: I’m not sure where the suit was filed, but it possibly may be in Tennessee where the publisher is located. At this point, it may be somewhat advantageous for YouTube to have multiple lawsuits going on in multiple jurisdictions. It increases the possibility that a court will agree with YouTube’s interpretation of the DMCA.

The 5th Copyright suit: NJ turnpike sues YouTube for car crash video

May 24, 2007

News: Here.  Yep, you heard that right, the NJ Turnpike is suing YouTube.

Should YouTube do more to discourage users from copyright infringement?

May 15, 2007

A friend of mine recently criticized YouTube for not doing more to discourage users from copyright infringement. He suggested, for example, that YouTube should allow other users to police each other for copyright infringement and send in complaints to YouTube (under the DMCA notice-and-takedown procedure, the copyright holder or agent must be the one complaining). Community policing is essentially what YouTube relies on for a whole host of inappropriate content to be flagged.  Last week, members of Congress, Chad Hurley, and Mark Cuban had a similar debate (see below).  Frankly, I thought the views on both sides were quite thoughtful (and far from the more combative accounts in the press).

What do you think about this or other ideas? This problem isn’t an easy one to solve (even putting aside the legal questions), so I’d love to hear your views.

YouTube sued for copyright infringement again

May 15, 2007

News:  Another copyright lawsuit has been filed against YouTube, bringing the total number of suits to 4.  The new case, filed in San Francisco, is:

No 4.   David Grisman, a mandolin player who performed with the Grateful Dead, along with his partner Craig Miller and company Dawg Music.  They are also seeking to certify a class action of musicians against YouTube.  Getting a class certified (if the judge determines it meets the requirements of Federal Rule of Civil Procedure 23) would make the case a much bigger potential worry for YouTube, with much higher potential damages should YouTube lose.  (More)  If someone can find a copy of the complaint, please send me a comment below.

Analysis:  It’s not time for YouTube to start sweating, but certainly the two class action possibilities raise the stakes.  Because 3 of the 4 lawsuits are in different jurisdictions, it is certainly possible that different courts might interpret the DMCA safe harbor differently and the case could end up in the Supreme Court.  That’s still a long way off, though.  YouTube will likely try to file some motions to defeat the class action certification in the 2 cases.

The YouTube copyright police

May 14, 2007

News: Businessweek has an article today describing the whole notice-and-takedown process at YouTube. Viacom has a cadre of people searching for clips on YouTube that infringes Viacom’s copyrights, spending about $100,000 per month for the process. Viacom doesn’t like it (and that’s why they sued): ” Since November, Viacom says, it has reviewed 2 million clips and sent 200,000 takedown notices to the site, a 10% hit rate.”

YouTube has its own cadre of people, who work 24/7, to take down clips for which a copyright holder sends in a DMCA notice. The unit is called SQUAD, the Safety Quality User Advocacy Department.

Analysis: This is a battle over philosophies (and how the burden to search for infringing works should be allocated): Viacom wants pre-screening on the front-end by YouTube, placing most, if not all, of the burden on YouTube, while YouTube wants an automated process coupled with the DMCA notice-and-takedown process (supplemented by whatever filtering technology that develops)–which places some of the burden on the copyright holder to identify the works in a DMCA notice. What the DMCA requires is what the Viacom lawsuit is all about.

The stats by Viacom are interesting. I’d like to know what the so-called “hit rate” has been after it sent YouTube all the DMCA notices. YouTube says it has “hashing technology” that automatically blocks any copy of a clip that’s already been removed under a DMCA complaint. If that’s true, Viacom’s hit rate could have gone down by now.

Will YouTube settle?

May 9, 2007

Regular readers of this blog know that I’m generally in favor of businesses being able to work out deals instead of suing each other. In YouTube’s case, I was happy to see it avoid lawsuits while it secured partnership deals with Sony, Universal Music, CBS, BBC, NBC, NBA, NHL, and others.

Now that YouTube faces 3 copyright lawsuits (Tur, Viacom, Engligh Premier League/Bourne), I am growing less optimistic that a business deal can resolve these disputes. A settlement won’t prevent someone else from suing, and, now that the door’s been opened, other copycat lawsuits may follow. (Ironically, copyright lawyers can freely copy the factual allegations in the earlier filed court pleadings.) Sure, Google’s got a lot of money, but I don’t think it wants to keep scuttling back to court over every unauthorized clip that surfaces on YouTube that someone complains about. Google is probably not one that caves in easily. When you are worth over $150 billion, you don’t have to. These cases could have been disastrous for YouTube, if Google hadn’t acquired it last October.  Now they may just be the cost of doing business in this new online video market.

And even if YouTube could settle with one of the plaintiffs, there’s no guarantee that the another one of the plaintiffs wouldn’t just hold out and try to win either on principle (maybe Robert Tur?) or for the hopes of winning big bucks (the proposed class action by Engligh Premier League).

So will YouTube settle? It’s very unlikely, now.

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.

Viacom v. YouTube — what the lawsuit is about

April 19, 2007

After outlining a debate between Viacom’s and Google’s lawyers last week, I promised to say more about the main issues in the Viacom lawsuit against YouTube. I will develop these issues more later, but here’s a rough sketch:

A. The Business issue: Basically, it’s about money–how and how much Viacom is to be paid by YouTube for clips of Viacom’s copyrighted shows (e.g., Colbert, Daily Show, South Park) on YouTube. The two sides had been trying to negotiate a deal, but talks have been unsuccessful. As I reported before, Viacom had earlier seemed willing to allow some of its clips on YouTube, even some posted there by YouTube users without a license — a sentiment that had been expressed in public statements made by producers of the Daily Show. Even this week, Google CEO Eric Schmidt keeps calling the lawsuit a “negotiating tactic” and indicating that the two sides will come back to the bargaining table. Of course, if they strike a deal, the lawsuit will evaporate.

B. Legal issues: As noted below, I think Issues 1-3 are where the real fight will be. At least from what I’ve read so far in Viacom’s complaint, Issue 4 and especially Issue 5 strike me as pretty flimsy.

1. Any duty to police under DMCA beyond notice and takedown: Beyond maintaining a process of taking down allegedly infringing works upon receipt of notice from the copyright holder as set forth in the DMCA safe harbor, how much other affirmative policing of its site, if any, must an Internet site like YouTube maintain? Under the default approach under the DMCA, it’s pretty clear that an Internet service provider has no affirmative duty to police the site beyond the notice-and-takedown procedure. The default approach does not apply to YouTube, Viacom argues, because YouTube is aware of “red flags” on its site that give it actual or constructive knowledge of the presence of infringing works, even apart from notice-and-takedown. YouTube disputes that it has such knowledge.  Under the DMCA, the standard for constructive knowledge is that the ISP is “aware of facts or circumstances from which infringing activity is apparent.”  We need to know more facts about YouTube’s actual practices, but this is where one of the fights will be.

2. Netcom defense for automated networks: This issue is related to (1), but the Netcom defense is based on case law and is available in addition to the DMCA safe harbor.

3. Financial benefit issue/DMCA: Does YouTube “receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity”? [More to follow]

4. Business model issue: Is YouTube’s business model predicated on encouraging copyright infringement? This question relates to (3) and (5). Based on the allegations in the Complaint, I think this sounds like a big stretch.

5. Inducement claim/Grokster: Is YouTube actively inducing infringement by taking affirmative steps to encourage others to commit copyright infringement? Based on the allegations in the Complaint, I don’t see this claim going anywhere.

Viacom v. YouTube/Google: their lawyers debate the lawsuit

April 15, 2007

Last week, I was at the annual Fordham International Intellectual Property Law & Policy conference. One of the highlights was seeing lawyers from Viacom and Google debate the lawsuit brought by Viacom against both YouTube and Google. The debate was very engaging, and, quite frankly, I was surprised how willing to comment on the pending lawsuit the two lawyers were.

Donald Verrilli, from DC’s Jenner & Block, represents Viacom. He’s the lawyer who succesfully represented the movie studios against Grokster before the Supreme Court.

Alex Macgillivray, Google’s Senior Product and IP Counsel, spoke on behalf of Google and YouTube. Alex has also been affiliated with Harvard’s Berkman Center for Internet and Society. The two lawyers were speaking on a panel with several other lawyers, but I will only discuss the Viacom-Google exchange, summarizing the main arguments in the general order in which they were presented.

Verrilli’s main points (for Viacom): (1) Verrilli agreed that there’s a lot of unauthorized use of copyrighted works on the Web–the topic of the panel. (2) As a practical matter, he said, the transformative type of unauthorized uses were not problematic (referring to mashups). (3) Instead, what is problematic is the wholesale acquisition and unauthorized use of copyrighted works through businesses like YouTube. It’s problematic b/c the business models of such companies generate very significant profits from unauthorized use.

(4) Given time constraints, Verrilli focused his discussion on the DMCA safe harbor — while shelving discussion of two other topics (i) academic arguments suggesting this kind of activity is beyond copyright and (ii) liability based on business models (under Grokster). (5) Verrilli took issue with Larry Lessig’s NYT op-ed in which Lessig characterized the DMCA as a “bargain” — copyright holders got an anti-circumvention protection law and ISPs, in return, got a safe harbor. If this bargain were truly the case, then a company like YouTube could just put a banner on the top of its home page stating: “We’re endeavoring to have all episodes of the O.C. on our site, so please upload them here.” Verrilli concluded that it doesn’t seem possible that Congress enacted the DMCA safe harbor to allow that.

(6) Verrilli stated that the DMCA safe harbor doesn’t just recognize “notice” on the part of the ISP based on a takedown notice, but instead the ISP can get knowledge elsewhere (from “red flags”)–which Verrilli suggested or stated was happening with the unauthorized clips on YouTube. (7) Also, the DMCA safe harbor doesn’t apply if the ISP receives a “direct financial benefit” from infringing activity where the ISP has a right and ability to control it. Here, there’s a benefit b/c the infringing content generates popularity, more viewers, which increases the potential ad revenue YouTube can command. (8) The DMCA protects only 4 certain functions (transitory transmission, caching, passive storage, and locator tools); it’s not a shield for infringing activity. (9) According to Verrilli, the ISPs have certain responsibilities under the DMCA, one of which is that it’s the ISPs “cost of business to stop infringement.” (10) Verrilli also charged that YouTube was only willing to offer filtering to companies that agreed to be partners of YouTube in licensing deals.

Macgillivray’s main points (for YouTube/Google): (1) YouTube empowers authors by allowing them to get their videos seen by lots of people. There’s also some content voluntarily provided by media companies on YouTube. But the whole reason YouTube started was to solve the problem of sharing video among friends (since you can’t do so by email, given the size of the files). Steve Chen’s first YouTube video was just a video of his cat.

(2) Macgillivray does a presentation of 3 videos posted on YouTube and asks the audience to vote whether they think the videos were posted on YouTube without authorization. (i) Video 1 is a video of Brookers; (ii) Video 2 is a video of Stephen Colbert, playing off his “truthiness” concept, and (iii) Video 3 is the Fox News Chris Wallace interview of Pres. Clinton. One audience member objects and says the choices to the question should include: “We can’t tell whether it’s authorized or not from the video.” Macgillivray likes the amendment, and a number of the people seem to agree on this point. Macgillivray later reveals that, although you may think that Video 3 was not authorized by Fox, in fact it was (after Fox itself reconsidered and put the video up on YouTube itself, although I’m not sure if I’ve linked to that particular version).

(3) Macgillivray then states that if YouTube were trying to make a business off of copyright infringement, it wouldn’t be doing all that’s doing now to curb infringement. First, he claims that they have the best DMCA notice/takedown procedure online — the turnaround is quick and automated. Second, YouTube has implemented a “hashing technology” that attempts to screen out any video whose content had previously been removed after a notice-and-takedown. Third, they’re searching for better ways to enable copyright holders to serach for unauthorized uses of their works on YouTube. Also, Macgillivray disagrees that the DMCA safe harbor recognizes liability based on a business model inquiry, but, in any event, the DMCA safe harbor case law in ebay, Amazon, Google, and ccBill cases are on its side.

(4) Macgillivray stated that the legislative history makes clear that the standard of “financial benefit directly attributable to the infringing activity” is a high standard, potentially higher than vicarious liability case law. Any financial benefit has to be “directly attributable” to the infringing activity. In the case of unauthorized clips on YouTube, YouTube gets no such financial benefit.  He points to an example in the legislative history to the safe harbor that indicates that even charging money for hosting services generally would not amount to receiving a financial benefit “directly attributable” to infringing activity.

(5) Macgillivray attempts to refute an allegation in Viacom’s complaint, which apparently suggested that an ISP could be liable if users used its service to make unauthorized videos available in private. That would make email providers liable.

(6) Macgillivray said it’s just not true that YouTube is restricting its filtering to partners who strike a deal with YouTube. When pressed in Q&A, he explained that some experimental testing of filtering has been made only with YouTube partners, but that’s only to test out the technology being developed.

(7) In Q&A, Macgillivray revealed that YouTube handles the takedown of pornographic clips on YouTube in the same way: it waits for notice, complaints by users. It’s easier to tell pornographic clips are pornographic than it is to tell whether a clip is unauthorized or not.

Analysis: I know there’s a lot of legalese in this post that nonlawyers may not follow, but I wanted to put down the main arguments as they were presented at this law conference. In a later post, I hope to add my own thoughts about this exchange and make the arguments a little bit more accessible to the layperson. Stay tuned.

Viacom’s lawsuit against YouTube: What backlash Viacom may face from YouTubers

March 15, 2007

News: In Viacom Suit Won’t Snuff Out YouTube, Catherine Holahan of has an insightful assessment of Viacom’s copyright lawsuit against YouTube. The article distinguishes YouTube from Napster, and makes several points in YouTube’s favor.

One point that I was not aware of about Viacom’s lawsuit: Viacom has not asked for an order stopping YouTube’s operation (as apparently was the case in the RIAA’s lawsuit against Napster)–which Holahan suggests means the following: “One reason for this could be that Viacom, owner of youth brand MTV Networks as well as Comedy Central, may not want to anger its key demographic in the same way that the RIAA did when it began to sue users of peer-to-peer sites. Another reason, says Rutchik, is that the whole suit is simply a negotiating tactic to make Google more willing to pay Viacom for its content.”

Analysis: I don’t think we should read too much into Viacom’s language describing the scope of the permanent injunction it seeks against YouTube.  It’s pretty generic.  I do think Holahan’s suggestion, though, is on target: given YouTube’s popularity, any company that caused or asked for a shutdown of YouTube, even if only temporary, would face a huge, perhaps cataclysmic backlash among millions of YouTubers. I’m reminded of what happened in Brazil when a court ordered it shut down there due to a sex video of a Brazilian model. The Brazilian model Daniela Cicarelli faced so much animosity from fans that she tried to distance herself from the lawsuit. Ironically, Cicarelli works for Brazil MTV, which is owned by Viacom.

There’s already a movement now on YouTube to “Boycott Viacom.” I’m not sure how successfull it will be unless YouTube becomes truly at risk of losing the lawsuit.

Viacom v. Google + YouTube

March 13, 2007

Here’s Viacom’s press release about its $1 billion copyright lawsuit against Google and YouTube:

NEW YORK, March 13, 2007 – Viacom Inc. (NYSE: VIA and VIA.B) today announced that it has sued YouTube and Google in U.S. District Court for the Southern District of New York for massive intentional copyright infringement of Viacom’s entertainment properties. The suit seeks more than $1 billion in damages, as well as an injunction prohibiting Google and YouTube from further copyright infringement. The complaint contends that almost 160,000 unauthorized clips of Viacom’s programming have been available on YouTube and that these clips had been viewed more than 1.5 billion times.

In connection with the filing, Viacom released the following statement:

“YouTube is a significant, for-profit organization that has built a lucrative business out of exploiting the devotion of fans to others’ creative works in order to enrich itself and its corporate parent Google. Their business model, which is based on building traffic and selling advertising off of unlicensed content, is clearly illegal and is in obvious conflict with copyright laws. In fact, YouTube’s strategy has been to avoid taking proactive steps to curtail the infringement on its site, thus generating significant traffic and revenues for itself while shifting the entire burden – and high cost – of monitoring YouTube onto the victims of its infringement.

This behavior stands in stark contrast to the actions of other significant distributors, who have recognized the fair value of entertainment content and have concluded agreements to make content legally available to their customers around the world.

There is no question that YouTube and Google are continuing to take the fruit of our efforts without permission and destroying enormous value in the process. This is value that rightfully belongs to the writers, directors and talent who create it and companies like Viacom that have invested to make possible this innovation and creativity.

After a great deal of unproductive negotiation, and remedial efforts by ourselves and other copyright holders, YouTube continues in its unlawful business model. Therefore, we must turn to the courts to prevent Google and YouTube from continuing to steal value from artists and to obtain compensation for the significant damage they have caused.”


Viacom sues YouTube + Google for $1 billion, alleging copyright infringement

March 13, 2007

News: Viacom has taken the gloves off. (Reuters has more)

Analysis: If this case does not settle, it will test the requirements of the DMCA safe harbor provisions under Section 512(c), (d) of the Copyright Act. YouTube has respectable arguments that it falls within the safe harbor, but nothing in the law is certain until a court faces the precise situation at issue.

I’ve got a class to teach today, so I will not be able to comment more until a little later. You can find an earlier post I did on the DMCA safe harbor here, and on Fred von Lohmann’s and John Palfrey’s analysis here.

YouTube to extend filtering only to partners, draws more ire

February 19, 2007

News: YouTube is late in rolling out anti-copyright-infringement tools, and now it reportedly has said or suggested that it will extend the filtering only to businesses that have secured deals with YouTube. One media source reportedly described this tactic by YouTube as close to a “mafia shakedown.” Said a Viacom rep, the “proposition that they will only protect copyrighted content if there’s a business deal in place is unacceptable.” (More here)

Analysis: If true, this maneuver by YouTube seems very questionable to me. YouTube should try to set a corporate policy of working with copyright holders to stop infringement, as far as practicable. Dangling filtering software like a bargaining chip makes YouTube sound opportunistic. This tactic could just agitate copyright holders into suing YouTube.

No deal for Viacom + YouTube; Viacom orders removal of thousands of clips

February 5, 2007

News:  Negotiations between Viacom and YouTube broke off last year.  The two sides had been trying to work out an agreement for YouTube to pay Viacom for all the unauthorized content on YouTube.  Viacom is the parent company of such shows as Jon Stewart’s The Daily Show, The Colbert Report, Spongebob, and MTV.  After the deal broke down, Viacom ordered YouTube to remove over 100,000 unauthorized clips on YouTube.  YouTube said it would comply.  (More from SF Chronicle)

Analysis: It’s hard to say who’s to blame for the negotiations breaking down.  Maybe both sides.  YouTube’s future success depends on its ability to convince big media conglomerates like Viacom to license its copyrighted content on YouTube.  We’ll see if the two sides come back to the bargaining table.

YouTube reviewing Japanese authors’ copyright demand

December 7, 2006

News:  In response to the letter sent by JASRAC, Japan’s equivalent of ASCAP (American Society of Composers, Authors, and Publishers), YouTube reportedly issued the following statement:  “We have received the letter and are reviewing it. Meanwhile we will continue to provide content companies in Japan and elsewhere with tools to easily notify us of unauthorised uses of their content so we can promptly remove it, in accordance with the Digital Millennium Copyright Act.” (More here)

Analysis:  As I’ve said before, a lurking copyright time bomb for Internet sites like YouTube is the potential liability under foreign copyright laws that do not have DMCA safe harbors or their equivalent.  YouTube refers to DMCA in its response, but other countries are under no obligation to follow U.S. law for conduct that occurs within their borders.  Having said that, U.S. law can be influential among other countries, especially developed countries like Japan.  I do not know whether Japan has a safe harbor comparable to the DMCA., but I am checking.

Comedy Central decides to leave many clips on YouTube

November 1, 2006

News:  Sarah Hall of E! Online has the inside scoop about Comedy Central’s recent decision to ask YouTube to remove some unauthorized clips of the Daily Show, the Colbert Report, and South Park from YouTube.  Turns out that Viacom, Comedy Central’s parent company, decided to remove some, but not all, clips from YouTube — which explains why many clips are still up on YouTube (as I reported here over the weekend).

Viacom stated: “We want our audiences to be able to access our programming on every platform and we’re interested in having it live on all forms of distribution in ways that protect our talented artists, our loyal customers and our passionate audiences.”

Analysis: From a business standpoint, I think Viacom’s multi-platform approach makes a lot of sense.  If YouTube garners milions of eyeballs each day, it would be stupid to have all the clips removed from YouTube.  While Comedy Central is building its own website with video clips, the library does not yet appear to be as large as what YouTube had.  Also, I don’t think the clips of Comedy Central shows on YouTube amount to a net loss for Comedy Central.  Comedy Central gets a benefit from free advertising on YouTube to pump up the popularity of their shows (this could be considerable), while Comedy Central loses the ability to package those clips on its own site, or attempt to license those clips to YouTube.  In the end, Viacom decided here to “split the difference” and allow some, but not all, clips on YouTube to remain there.  

More on YouTube + DMCA safe harbor

October 30, 2006

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.

Japan’s music copyright holders demand YouTube to take down 30,000 files

October 20, 2006

News:  The Japanese Society for Rights of Authors, Composers, and Publishers (JSRAC) — Japan’s version of our ASCAP — sent a notice to YouTube identifying close to 30,000 files on YouTube that were allegedly infringing the music copyrights of JSRAC’s members.  Upon receiving the notice, YouTube took down all the files.  (More here)

Analysis:  This is precisely the kind of process the DMCA safe harbor provision (Section 512) envisions.  Frankly, this incident bolsters YouTube’s claim to falling within the safe harbor by demonstrating its prompt removal of files upon receipt of notice.