NBC praises YouTube technology in keeping unauthorized Olympics videos off the Internet — is Viacom’s case against YouTube now toast?

September 17, 2008

News:  NBC Universal General Counsel Rick Cotton reports the amazing success of keeping unauthorized copies of NBC’s broadcast of the highly successful (Mike Phelpsian) OIympics in Beijing off the Olympics.  Cotton says that less than 1% of Olympics videos online were unauthorized. 

NBC used a 2 pronged strategy: (1) get other online providers to use digital fingerprint technology to filter out those Olympics video that didn’t have the fingerprint–Cotton says 80% of the success is attributable to this strategy; and (2) using Web crawling technology from Vobile to police the web for unauthorized clips, which allowed NBC to send DMCA notices to sites.

Cotton beamed about YouTube’s digital fingerprinting technology the most.  According to BusinessWeek, “By the way, Cotton says the most impressive automation occurred with YouTube. While the online video giant has had a reputation with many broadcasters for not doing enough to protect copyrighted content (not to mention a $1 billion lawsuit from Viacom), Cotton says YouTube worked closely with NBCU. Also, he says YouTube’s homegrown content recognition system worked effectively. This should come as a surprise to many of my sources, who were convinced that Google was doing as little as possible to perfect a technology whose reason for being is to keep content off its site. ‘The most extensive automation we had was with YouTube. Their system worked very well,’ says Cotton.”  (More)

Analysis: This evidence from NBC Universal provides a devastating blow, in my view, to Viacom’s copyright case against YouTube.  When coupled with the recent DMCA safe harbor victory for Veoh, NBC Universal’s backing of YouTube’s fingerprinting anti-infringement technology significantly bolsters YouTube’s defense that it goes above and beyond the DMCA safe harbor. 

I have to admit that I marveled at the lack of unauthorized Olympics videos on YouTube.  Now that NBC Universal has explained the amazing success of YouTube’s fingerprinting technology, Viacom and the other plaintiffs suing YouTube will be hard-pressed to argue that YouTube is not doing enough to combat copyright infringement.  The 2008 Olympics may turn out to be not only a huge victory for Michael Phelps, but also Chad Hurley and the team at YouTube.

I think a key lesson of NBC’s success in keeping unauthorized Olympics videos off the Internet is that copyright holders must share the burden in protecting their copyrights.  Yes, copyright holders must spend money to enforce their copyrights!  Too often in the rhetoric against YouTube some of plaintiffs seem to want to shift the expense of enforcement to YouTube.  The DMCA, however, always envisioned a sharing of that burden under a notice-and-takedown system.

DMCA safe harbor protects Veoh online video sharing — major victory that may help YouTube

August 28, 2008

News:  The district court in the Northern District of California decided in favor of Veoh, an online video sharing site, holding that it fell within the DMCA safe harbor.  Michael Arrington of Tech Crunch has 2 excellent analyses of the decision here and here.  One of the key parts of the ruling is that a video sharing site does not become disqualifed from the safe harbor by setting up a system that converts videos into a different (here, Flash) format (the plaintiff porn entertainment company claimed that such conversion showed that Veoh had control over the content).  Arrington also lists a number of key parts of the decision on his blog.

Analysis:  I am poring over the opinion myself and hope to have a followup soon.  The copyright cases against YouTube are in New York, so this precedent is not binding in that jurisdiction.  But it is undoubtedly helpful to YouTube’s case there.

UPDATE:  Here are some of the most important principles the court appeared to embrace in the Veoh case:

1.  A video sharing site doesn’t have the “right and ability” to control infringing activity just by setting up a system where users can upload videos.  The site’s control over its system is different from control over the content uploaded by users.  Op. at 28.

2.  The presence of professional content in videos (without copyright notices) that are posted on video sharing sites do not necessarily create a “red flag” of infringing activity.  Op. at 21-22.

3.  Court completely rejects argument that Veoh should have prescreened every video finding that practically infeasible (and in any event it’s not required by DMCA).  Op. 28

4.  The court says that Veoh policed its system as presently architected, and that was reasonable enough under the DMCA.  Op. 29  A lot of what Veoh did (e.g., hashing or fingerprinting technology) appears to be what YouTube is doing as well.

Negative publicity forces Viacom to narrow scope of discovery request from YouTube, redacting usernames

July 15, 2008

News: Michael Arrington of Tech Crunch has the lowdown on the agreement reached by Viacom and YouTube to allow YouTube to redact usernames and IP addresses from the logs of videos watched on YouTube.

Analysis: At least Viacom is not being pig-headed about the way it litigates its copyright lawsuit against YouTube. Although Viacom initially sought the usernames and IP addresses and persuaded the court to force YouTube to turn the information over (potentially in violation of the VPPA), now Viacom realizes the public relations nightmare that was brewing among users of YouTube — who also may watch Viacom shows. This is a sensible narrowing of Viacom’s discovery request because Viacom really wants to go after YouTube, not smaller fish.  Also, it probably takes care of any VPPA problem.

YouTube users revolt against Viacom for seeking histories of all videos watched on YouTube, including user names of people who viewed videos

July 8, 2008

YouTube’s privacy mess — will users revolt?

July 5, 2008

News: YouTube is in serious damage-control mode, after being ordered by Judge Stanton to turn over, among other things, (i) apparently all videos ever removed from YouTube after being flagged, the videos number in the millions; and (ii) for every video ever uploaded on YT, a log of the viewing history of YouTube users, including the IP addresses of users plus their usernames, and the time they watched the video. It’s quite possible this order violates the privacy statute VPPA (as discussed in another post below), but, at this point, not sure YouTube is asking the court to reconsider its order or seek an immediate appeal to protect the privacy interests of its users.

On its blog, YouTube said its trying to convince Viacom to allow YT to redact the usernames and IP addresses to preserve user confidentiality. We’ll see what happens.

As you might expect, many YouTube users are angry about release of their viewing history. Here’s a typical angry comment posted on YT:

“I have an idea, STOP LOGGING IPs. It bothers me that you guys are keeping track of viewing histories by IP for such a long time. Sure, a simple IP doesn’t give out personal information but these bastards are known to contact service providers to attempt and retrieve the personal details attached to an IP, or at least to send scare tactic emails to their customers. You have a staff of friggin geniuses at your disposal, why not get them to come up with a way to REALLY PROTECT our privacy. It was fun watching videos here, but I think I’ll avoid YouTube videos from now on, log out of my account for good and if absolutely necessary, view videos through a proxy. Thanks for trying, but we know and you know you can try a lot harder.”

Analysis: One thing that surprises me is that apparently YouTube keeps the files of all videos ever removed from YouTube — 12 terabytes of files + millions of videos. Offensive videos, pornographic videos, hate videos, apparently all saved by YouTube. Maybe it just takes more work to completely remove them from YT’s servers, or maybe YT needs the deleted files to try to stop copycat repostings of the deleted files?? I don’t know.

Judge Stanton orders YouTube to reveal usernames, videos watched, + viewing history over YouTube’s privacy law objections

July 3, 2008

News: In the Viacom v. YouTube copyright lawsuit, Judge Stanton ordered YouTube to disclose “all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website,” which includes “for each instance a video is watched, the unique “login ID” of the user who watched it, the time when the user started to watch the video, the internet protocol address other devices connected to the internet use to identify the user’s computer (“IP address”), and the identifier for the video.” You can read the opinion by clicking here.

EFF argues that the court order violates the Video Privacy Protection Act (VPPA). The Judge apparently didn’t think it applied (dismissing it in a footnote).

Michael Arrington of Tech Crunch agrees with EFF and lambastes Judge Stanton for the ruling, though with the “utmost respect.”

Mike Masnick of Tech Dirt agrees with EFF and thinks the disclosure of usernames and videos watched violates VPPA.

Analysis: In terms of the privacy law, the key question is whether online videos fall within “prerecorded video cassette tapes or similar audio visual materials” under the VPPA. I haven’t read the statute yet, but my initial “ordinary meaning” interpretation of those words would be that online videos clearly are “similar audio visual materials” to video tapes. There’s really not much difference between online video and a video tape.

Viacom said that it would handle the user data confidentially and just wants to prove its case (more). OK, even if YouTube users can trust Viacom, there are numerous other plaintiffs involved in the class action lawsuit against YouTube who will also receive the information.

Another thing wrong with Judge Stanton’s analysis is the notion that a YouTube “login ID is an anonymous pseudonym” (p. 13). There are plenty of YouTube usernames that are either actual birth names–Esmeedenters, Terranaomi, Judsonlaipply, TayZonday, etc–or usernames that are readily identifiable people in the YouTube community–Renetto, Smosh, Lisanova, Justine, Paperlillies, Hotforwords, Valsartdiary, etc. Sure, many YouTube usernames are not well known, but many others are.

Some copyright lawsuits v. YouTube disappear

February 3, 2008

News: Back in August 2007, I reported on the 6 copyright lawsuits filed against YouTube. Well, it appears that in 4 of those cases, the lawsuit has been dropped voluntarily by the plaintiff. At least a few of the plaintiffs (Robert Tur, Cal IV publisher) joined the class action in New York against YouTube.

Another key development: Mayer, Brown attorneys Richard Ben-Veniste, Andrew H. Schapiro, and A. John P. Mancini, have now been brought in to be the attorneys of record for Defendants YouTube, Inc., YouTube, LLC, and Google Inc. They replace the law firm of Bartlit Beck Herman Palencher & Scott LLP, and its attorneys, Philip S. Beck, Mark S. Ouweleen, Rebecca Weinstein Bacon, Shayna S. Cook, and Carrie A. Jablonski. I don’t know the reason for the change in lawyers, but it’s definitely an interesting switch. I used to work for Mayer, Brown! Ben-Veniste is famous for being one of the Watergate prosecutors. He doesn’t specialize in copyright law, but neither did Philip Beck, the lead counsel Ben-Veniste is replacing.

One thing that is striking to me is that now all the copyright cases are located in the Southern District of New York. I wouldn’t necessarily think that strategy helps YouTube, which might have been helped by having several different courts consider some of the novel issues presented in the cases. This is pure speculation but maybe the plaintiffs’ attorneys in the New York cases persuaded all the others to drop their suits and join them?

Here’s an update on all the cases.

(1) DROPPED: Robert Tur’s suit in California for the Reginald Denny beating video (with a request by Viacom + NBC Universal to file an amici brief). Tur just dropped his suit to join the class action suit with Premier League in (3) below.

( 2) Viacom’s suit in the Southern District of New York (for Daily Show, Colbert Report, Sponge Bob, South Park, MTV clips, etc.) Just had a scheduling conference; apparently will have another. Philip Beck Richard Ben-Veniste of Mayer, Brown is now YouTube’s lead counsel. Don Verrilli is Viacom’s lead counsel. Judge Louis Stanton is presiding. Viacom International, Inc. v. YouTube Inc., 07-CV-02103. (Case docket from Justia)

(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 the Southern District of New York. So far, the Rugby Football League, the Finnish Football League, the National Music Publishers’ Association, and Knockout Entertainment Limited, Seminole Warriors Boxing, Robert Tur (from the 1st lawsuit), the Federation Francaise de Tennis, and Ligue de Football Professionnel. have also joined in the action. Also joining the class is New York-based Cherry Lane Music Publishing, which “owns more than 65,000 copyrights, including the publishing rights to music from Elvis, Quincy Jones, and the Black Eyed Peas.” Max Berger is lead counsel for Premier League; Philip Beck Richard Ben-Veniste of Mayer, Brown is lead counsel for YouTube. Judge, TBD. The Football Association Premier League Limited v. YouTube, Inc., 07 CV-3582. (Case docket from Justia)

(4) VOLUNTARILY DISMISSED: 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 in the Northern District of California. Joseph Tabacco is lead counsel for Grisman. David Kramer is lead counsel for YouTube. Judge Susan Illston is presiding. Grisman v. YouTube, Inc., 2007cv02518. (Case docket from Justia)

(5) DISMISSED: The New Jersey Turnpike for use of certain surveillance footage. Suit in New Jersey. Judge Katharine S. Hayden is presiding. New Jersey Turnpike Authority v. YouTube, Inc., 2:2007cv02414. (Case docket from Justia)

(6) VOLUNTARILY DISMISSED: Country music publisher Cal IV, which owns rights to the songs by Faith Hill, Tim McGraw, and others. Also seeking a class action, this one in Nashville. Daniel Girard is lead counsel for Cal IV. James Doran and Robb Harvey, two Nashville attorneys, represent YouTube. Judge Robert Echols is presiding. Cal IV Entertainment v. YouTube, CV-00617 (Case docket from Justia) JOINED THE CLASS ACTION IN SDNY.

New Yorker article on Google

January 13, 2008

News: Ken Auletta has a must-read article about Google titled “The Search Party” in this month’s New Yorker. It has some mention of YouTube and Viacom’s lawsuit. One interesting quote is that CEO Eric Schmidt seems willing to test the scope of copyright on behalf of users:

In addition, Schmidt said, copyright “is not an absolute right,” and has to be balanced by “fair use.” When I asked whether Google wanted to push the envelope on privacy and copyright, he said, “That’s probably correct. If there’s a legal case, we’re going to favor the legal one that favors users.

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.

Who is suing YouTube for copyright infringement

August 8, 2007

News:  It seems like everyone–except the recording industry–is suing YouTube.  Here’s an update on all the cases.

(1) DROPPED:  Robert Tur’s suit in California for the Reginald Denny beating video (with a request by Viacom + NBC Universal to file an amici brief).  Tur just dropped his suit to join the class action suit with Premier League in (3) below. 

( 2) Viacom’s suit in the Southern District of New York (for Daily Show, Colbert Report, Sponge Bob, South Park, MTV clips, etc.)  Just had a scheduling conference; apparently will have another.  Philip Beck is YouTube’s lead counsel. Don Verrilli is Viacom’s lead counsel.  Judge Louis Stanton is presiding.  Viacom International, Inc. v. YouTube Inc., 07-CV-02103.  (Case docket from Justia)  

(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 the Southern District of New York.  So far, the Rugby Football League, the Finnish Football League, the National Music Publishers’ Association, and Knockout Entertainment Limited, Seminole Warriors Boxing, Robert Tur (from the 1st lawsuit), the Federation Francaise de Tennis, and Ligue de Football Professionnel. have also joined in the action.  Also joining the class is New York-based Cherry Lane Music Publishing, which “owns more than 65,000 copyrights, including the publishing rights to music from Elvis, Quincy Jones, and the Black Eyed Peas.”  Max Berger is lead counsel for Premier League; Philip Beck is lead counsel for YouTube.  Judge, TBD. The Football Association Premier League Limited v. YouTube, Inc., 07 CV-3582.  (Case docket from Justia

(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 in the Northern District of California.  Joseph Tabacco is lead counsel for Grisman.  David Kramer is lead counsel for YouTube. Judge Susan Illston is presiding. Grisman v. YouTube, Inc., 2007cv02518.  (Case docket from Justia)

(5) The New Jersey Turnpike for use of certain surveillance footage.  Suit in New Jersey.  Judge Katharine S. Hayden is presiding.   New Jersey Turnpike Authority v. YouTube, Inc., 2:2007cv02414.  (Case docket from Justia) 

 (6)  Country music publisher Cal IV, which owns rights to the songs by Faith Hill, Tim McGraw, and others. Also seeking a class action, this one in Nashville.  Daniel Girard is lead counsel for Cal IV.  James Doran and Robb Harvey, two Nashville attorneys, represent YouTube.  Judge Robert Echols is presiding.  Cal IV Entertainment v. YouTube, CV-00617 (Case docket from Justia)

Viacom v. YouTube hearing: YouTube says it’s developing video fingerprint technology to combat copyright infringement

August 1, 2007

News: On Friday, Viacom and YouTube/Google had a scheduling conference in the Southern District of New York. The biggest news from the hearing was word from YouTube/Google’s lead counsel Philip S. Beck of Barlit Beck Herman Palenchar & Scott LLP about the video fingerprinting technology under works. YouTube already uses AudioMagic’s audio fingerprinting technology to help identify copied audio files. YouTube is developing similar kind of technology to recognize video file fingerprinting, with anticipated deployment around September.

“Somebody who has a copyrighted video … would provide it to us and say ‘we don’t want this up on YouTube.’ We’re developing a way to take basically an electronic or video or digital fingerprint of this material so that if somebody does try to upload it, within a minute or so the computers will figure out that that’s one of the items that the copyright owner said they don’t want up on the system, and we would be able to pull that down until any issues are resolved,” Beck said. (More here)

Analysis: It will be interesting to see what the Google guys cook up. People should be realistic, though, and not expect a foolproof system that will stop all copyright infringement. The open architecture of the Internet makes that virutally impossible.

Mossberg interviews Google CEO and Viacom CEO

June 1, 2007

News: WSJ writer Walter Mossberg also interviewed Google CEO Eric Schmidt and Viacom CEO Phillipe Dauman, separately, asking many questions about copyright law. Obviously, the two CEOs disagree.

Analysis: Because the DMCA safe harbor provision is not crystal clear, the uncertainty allows YouTube/Google and Viacom to have different takes on what it means.  Much of it revolves around how much burden to police YouTube for infringement should be left to individual copyright holders versus YouTube itself.

Google/YouTube file response to Viacom copyright lawsuit

May 1, 2007

More here. (I will try to get my hands on the 12-page response to analyze it.)

UPDATE:  Google/YouTube’s Answer (link below in comments) is pretty bare bones — which is fairly typical for an answer.  Besides the first paragraph, the Answer is pretty rudimentary, if not downright boring.  Mostly pro forma denials, sprinkled in with a few admissions of facts by Google/YouTube.  Google/YouTube will (of course) be making the DMCA safe harbor the center piece of its defense.  Here are a couple things to note: 

1.  I’m a little surprised there’s no mention of the Netcom type defense, although it may not be an affirmative defense that has to be plead (I’m not sure). 

2.  Also, the biggest surprise was that Google’s enlisted trial attorney Philip Beck from the Chicago firm of Bartlit Beck Herman Palenchar & Scott LLP, who last year successfully defended Merck in four of five cases last year in the Vioxx trials (he also represented GW Bush against Gore in the 2000 election fiasoc).  Beck’s known for knowledge of technology and his use of technology and visual aids in the courtroom, which may be another reason Google liked him.   More about Beck here.  

Jonathan Jacobson from Wilson Sonsini’s NY office or David Kramer from Wilson’s home office in Palo Alto appears to be lead counsel.  Only Kramer is a copyright specialist; Beck (who has done patent litigation as well) and Jacobson are there because they are heavyweight trial attorneys with a track record of defending high profile cases. 

Analysis: One thing is for sure about this case.  The lawyers on both sides will benefit, while Google/YouTube and Viacom continue to disagree about a deal.

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.

Wired interview w/ Google CEO Eric Schmidt

April 10, 2007

News: Wired has an interview with Google CEO Eric Schmidt in which he discusses YouTube and the Viacom copyright lawsuit.  Here’s the relevant part:

Wired: In March, media giant Viacom sued Google, claiming that YouTube is stealing its video content. What made Viacom decide to go to court?

Schmidt: It’s a business negotiation. We’ve been negotiating with them, and I’m sure at some point we’ll negotiate with them some more.

Wired: Viacom’s argument is that you’re not working hard enough to keep infringing clips off of YouTube.

Schmidt: Well, if they would look at the law, they’d understand that under the Digital Millennium Copyright Act, there’s a shared responsibility. The law says that the copyright owner monitors — and then we expeditiously remove — offending clips. We’ve done that. In fact, YouTube’s traffic has grown since we did. So Viacom’s argument that YouTube is somehow built on stolen content is clearly false.

Wired: How could copyright law in the digital age be clearer?

Schmidt: The balance that was struck in the DMCA has worked pretty well, and I think it may be better for all of us to work within that framework for a while as we develop these new businesses. It’s the unintended consequences of new laws that always get you.

Analysis:  Eric Schmidt’s comments are well taken.  First, he’s exactly right about the DMCA safe harbor provision — service providers like YouTube do not have to affirmatively patrol their site for copyright infringement.  The legislative history and case law on the DMCA are pretty clear about that.  In a networked environment, it would be virtually impossible for Internet service providers to have to patrol their sites for copyright infringement.  Viacom doesn’t like patrolling YouTube for copyright infringement but that burden is relatively small when compared to the burden YouTube would face in having to patrol its site for all copyright infringement.  Viacom is only one copyright holder and only has to look for its own shows on YouTube.  But the reverse rule sought by Viacom would mean that YouTube would have to look for copyrighted works of not just Viacom, but hundreds, if not thousands, of copyright holders.  Schmidt’s right that, under the DMCA, there is a “shared responsibility” among Internet service providers and copyright holders.

Second, Schmidt refutes Viacom’s assertion in its complaint that YouTube’s business model is built on “stolen content.”  Referring to a recent study that indicated YouTube’s traffic increased after Viacom’s shows were removed from YouTube, Schmidt says that Viacom’s assertion is  “cleary false.”  I’ve already blogged about this aspect of Viacom’s complaint before — it seems overblown to me and vulnerable to summary judgment. 

Third, the most revealing aspect of Schmidt’s comments, though, are not legal.  Schmidt says that the lawsuit is a part of the “business negotiations” with Viacom.  You don’t even have to read in between the lines to conclude that a settlement of the case is very likely.   One of the things that I’ve learned since I started following YouTube is the important role business and consumer dealings play in or in addition to copyright law.  It would be a mistake to think of the dispute between YouTube and Viacom only in terms of copyright law.  Even the DMCA safe harbor provision is premised on a certain practical arrangement that accepts the existence of some “network” type infringement on the Internet.

That said, Viacom could always elect to forego settling the case and pursue it the very end.  But could Viacom afford the risk of losing the case and giving Google even more bargaining power?

Vidmeter study refutes Viacom’s copyright allegations against YouTube

April 5, 2007

News:  Shortly after Viacom sued YouTube, I questioned in this post whether Viacom’s factual allegations in its complaint were way overblown, specifically those contending that YouTube’s business model is built on a “massive” amount of infringing files.  Based on my own daily review of YouTube videos, that seemed untrue.  Most of the files on YouTube appear to me to be user-created content or home videos.  Viacom complained about 130,000 files — that number would comprise less than an even a small fraction of one percent of the several billion files on YouTube.  And most of the most popular videos on YouTube are user-generated content.

This week, Vidmeter.com, an online site that tracks video sharing online, has issued a report substantiating some of my points and the relatively modest role that infringing files play on YouTube.  From a 3-month study of the most-watched videos on YouTube (6,725 videos that were collectively viewed over 1 billion times), Vidmeter concludes:  “In summary, we found that of the 6,725 most popular videos on YouTube, only 621 had been removed due to copyright requests. Views to the removed videos made up less than 6% of all recorded YouTube views.” 

Specifically, Viacom’s removed files constituted only 2.37% of all views on YouTube during that time period.

Has Viacom overblown its case?

March 15, 2007

In my former days in private practice, I had to draft several complaints.  Back then, as a young lawyer, I was big into rhetoric, so I enjoyed throwing in a lot of gloomy, doomsday-sounding words.  Now that I’ve matured (at least as a lawyer) I’m more often turned off by overblown rhetoric.  Overstating one’s case can backfire by raising expectations of the court higher than the evidence supports.

Reading over Viacom’s complaint, I fear that Viacom has overblown its case.  It has the kind of rhetoric–doomsday– appealing to young associates.  In a short complaint of only 27 pages, Viacom uses the word “massive” 9 times, “rampant” 4 times, and “brazen” twice.  Here’s one example:

Viacom:  “Using the leverage of the Internet, YouTube appropriates the value of creative content on a massive scale for YouTube’s benefit without payment or license.  YouTube’s brazen disregard of the intellectual property laws fundamentally threatens not just Plaintiffs, but the economic underpinnings of one of the most important sectors of the United States economy.”   

Viacom goes even further:  “Defendants know and intend that a substantial amount of the content on the YouTube site consists of unlicensed infringing copies of copyrighted works and have done little or nothing to prevent this massive infringement.  To the contrary, the availability on the YouTube site of a vast library of the copyrighted works of Plaintiffs and others is the cornerstone of Defendants’ business plan.  YouTube deliberately built up a library of infringing works to draw traffic to the YouTube site, enabling it to gain a commanding market share, earn significant revenues, and increase its enterprise value.” 

Analysis:  I doubt that Viacom will be able to substantiate most of these bold assertions.  For starters, YouTube only made $15 million in revenue last year and none from Viacom’s unauthorized clips.  Second, to suggest that the “cornerstone” of YouTube’s business plan is based on exploiting infringing works seems to fly in the face of all the legitimate content on YouTube, as Businessweek’s Catharine Holahan points out.  Based on my own review of YouTube files posted daily, I would estimate that the vast majority of works on YouTube do not involve any recorded clips of TV shows.  Most are user-generated videos, which I believe is also the case for the majority of the “most viewed videos,” all time, on YouTube.

Viacom probably has a somewhat inflated view of how important video clips of its shows are to YouTube.  Compete blog’s Max Freiert has a statistical analysis (which I hope to discuss more) indicating that YouTube became more popular after all Viacom’s clips were removed.  I haven’t had a chance to study these numbers, but my hunch would be that it’s probably correct.  Viacom complained about 130,000 clips.  But YouTube probably has several billion clips now, receiving 65,000 a day.  That would make Viacom clips on YouTube less than a fraction of one percent of all clips on YouTube.  I mean, I like Stephen Colbert and all, but he’s not the reason I go to YouTube.

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 BusinessWeek.com 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.

YouTube’s defenses to Viacom copyright lawsuit

March 14, 2007

YouTube should have two main defenses to Viacom’s copyright lawsuit, although the first is the one more often talked about: (1) the DMCA safe harbor for hosting content and providing locator tools, Section 512(c), (d), and (2) the Netcom/CoStar defense for automated online systems.

In an article in The Reporter, Esq., EFF’s Fred von Lohmann provided a pretty fair and thorough analysis of the defenses even before Google bought YouTube — identifying even the possible ambiguities in the safe harbor provision and likely areas of contention. I do agree with von Lohmann’s basic analysis, and recommend his article for those who want to familiarize themselves with the basic legal arguments. As the case progresses, I hope to write in greater depth about YouTube’s defenses.

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.