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.