YouTube/Google Beats Viacom in Copyright Case

Today’s post was co-authored by Shane Wagman, a 2009 Google Policy Fellow at Future of Music Coalition. She is currently a law student at the Benjamin N. Cardozo School of Law and a Howard M. Squadron Media Fellow / legal intern at the Electronic Frontier Foundation. The views and opinions in this post are wholly her own and do not reflect the views of any other organization.
Yesterday, Judge Louis Stanton of the U.S. District Court for the Southern District of New York handed down a victory for YouYube (owned by Google), which essentially states that the company cannot be held liable for acts of copyright infringement committed by its users. (Here’s a PDF of the court opinion.)
Many see the ruling as a positive development for user-oriented sites and services, even ones that are still just a twinkle in some developer’s eye. Basically, if YouTube had been found liable for infringement, so, too might services like Twitter, Facebook and Flickr. It’d be a shame if they had to shut down Facebook now that your mom has finally joined.
The question in this case was whether YouTube had knowledge of infringement, to what degree, and whether they were taking active steps to deal with it. All of this would determine whether the site qualifies for the “safe harbor” protections within the Digital Millennium Copyright Act (DMCA) — a chunk of legislation passed in 1998. Under safe harbor, online services (like ISPs, search engines, etc.) are not liable for infringement, provided they fulfill a few statutory requirements (which we’ll get to in a minute).
Was it sufficient that YouTube executives had “generalized knowledge” that someone, somewhere was uploading infringing videos to the site? Or, would YouTube need knowledge of specific instances of infringement to lose their safe harbor? If generalized knowledge is enough to strip protections, it could expose other content-hosting websites to widespread litigation.
The court did not take this broad view, however. Instead, Judge Stanton held that YouTube must have “specific and identifiable infringements of particular individual items” to be outside of the DMCA’s safe harbor:
“If a service provider knows … of specific instances if infringement, the provider must promptly remove the infringing material. If not, the burden is on the owner to identify the infringement. General knowledge that infringement is “ubiquitous” does not impose a duty on the service provider to monitor or search its service for infringement.”
From there, the judged ruled that YouTube does indeed qualify for safe harbor protections. YouTube did not have knowledge as defined by the DMCA and had effective policies for removing infringing content, once notified.
Viacom argued that this was not always the case, pointing to early correspondence between YouTube founders indicating that they were aware of infringement. Judge Stanton focused on more current evidence. “Indeed, the present case shows that the DMCA notification regime works efficiently,” he stated. “When Viacom over a period of months accumulated some 100,000 videos and then sent one mass takedown notice on Feb. 2, 2007, by the next business day YouTube had removed virtually all of them.”
Some would say the decision legitimizes an “infringe now, comply later” approach to business development. It’s not a new argument, and there have been several cases of infringing sites going “legit” with the participation of major rightsholders.
On the other hand, YouTube is a vital promotional tool for both major and indie acts. This decision removes the specter of massive infringement lawsuits, allowing for more potentially worthwhile innovations. Which in turn means that musicians can continue to enjoy a broad range of services to help build buzz.
YouTube makes it possible for anyone’s expression to be seen and heard by millions. But things are still a bit fuzzy on the revenue-generation side, with no guaranteed path to revenue. To its credit, YouTube seems willing to work with creators large and small on compensation strategies, as evidenced by the “partner” arrangements on YouTube and spinoff sites like Vevo.
Still, it’s clear that some people use the service to upload videos containing copyrighted music, including songs owned by Viacom. Which is why they sued for no less than 1 billion dollars.
Judge Stanton’s decision says that YouTube doesn’t owe diddly.
The DMCA safe harbor doesn’t work perfectly — sites like YouTube aren’t able to make determinations about possible “fair uses” or even licensed content. They simply take stuff down when alerted to an infringement. On the other hand, safe harbor has clear benefits to the public, including rightsholders and music lovers. We’re willing to bet that some of you have discovered your new favorite band on these kinds of services.
There’s no doubt that the YouTube decision is significant. But the fight is hardly over — Viacom has vowed to appeal, and there’s a real possibility of the verdict being overturned. We’ll be keeping an eye on this one. The other eye will be watching that new OK Go video.
Comments
2 comments postedQuestion. The employee's of
Submitted by MikeAlike(recording artist) (not verified) on July 3, 2010 - 12:00am.Question. The employee's of Youtube/Google are infringing and using others work or random users are? Youtube has no control of what users do at random nor is their responsibility- if the users are infringing and selling others work for commercial purposes thats another matter- although a creative common practice and law applies to use of works if its intention and purpose is used for non merchandising purposes, correct? And a major label "act" has used my/our material/work and this "recreation" or altered form is played on Viacom channels- its allowed for me to sue them (Viacom)or the label which houses the offender, and to mention I contacted that particular label group- they refuse to return my call, go figure. This sort of "act" of infringement occurs often- so Viacom and Youtube is to remove any such display on their channel now due to the labels use is unwarranted- or its actually the responsibility of the label to remove the work used? We don't hold Viacom responsible, why? They didn't produce the video.
Hi Mike, Thanks for the
Submitted by Casey on July 6, 2010 - 3:03pm.Hi Mike,
Thanks for the comment. There appear to be a couple of different questions here, and I'll do my best to answer them.
The judge in this case indeed decided that, according to his reading of the Digital Millennium Copyright Act, YouTube is not liable for infringement by third parties (ie, the users who put stuff up on the site). His decision applied a couple of tests based on DMCA statute, which we described in the post.
The basic idea is that, if YouTube a) has no prior knowledge of SPECIFIC infringements and b) takes immediate action when notified of infringement, then they are eligible for the so-called "safe harbor" protections in the DMCA that protect certain web services (search engines, user-generated content sites, etc.) from liability.
The judges opinion — which has been criticized by some as being insufficient in its application of statute — nonetheless tracks with another recent case concerning the now-defunct web video site Veoh. That case was decided similarly, according to DMCA statute. YouTube/Google just happen to be way bigger, hence all the hullaboo.
Your second question seems to be about copyright designations within Creative Commons. I'm not a CC expert, but as I understand it, it does enable the creator to modify the type of uses allowed — like allowing all non-commercial uses to be free. If a corporate entity wants to use a work under that specific CC designation, the creator is in their rights to demand that they stop (or negotiate monetary terms to authorize the use).
I've heard an anecdotal story about how some guy made a goofy YouTube video that was shown on a Viacom-owned channel (like MTV) in a "stupidest web videos"-style segment. I'm not sure if he objected to the use, but I'm guessing he didn't.
Supposedly, someone else put the televised broadcast featuring that same goofy video up on YouTube. Viacom subsequently ordered a takedown of a video they originally got from the site. Bizarre, huh?
Keep in mind that Viacom are the owners of the content under dispute in the YouTube case, so it's a bit different. YouTube is merely a conduit through which the videos can be viewed.
YouTube does have licensing arrangement with plenty of major content companies,but Viacom chose to go down the legal route. Which so far, hasn't seemed to work out for them.
That said, there is a very good chance that this decision will be overturned in appeal.
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