[This post is by FMC Policy Intern Joe Silver]
A little while back, the FMC crew posted our take on the recent Viacom v. YouTube decision, which the U.S. Second Circuit Court of Appeals handed down on April 5, 2012. In that case, Viacom sued YouTube seeking one billion dollars in damages resulting from alleged infringement of Viacom-owned content that users uploaded to the site. To the delight of cat video enthusiasts the country over, the Court largely upheld YouTube’s qualification for so-called “safe harbor” protections, immunizing it from “secondary liability” for infringing materials uploaded to its site. These provisions can be found within the Digital Millennium Copyright Act (DMCA).
While this decision may have set important precedent for domestic service providers, consumers and creators, copyright policies across the globe don’t always resemble US law. Of course, platforms like YouTube have a reach that extends well beyond national borders. As a result, YouTube and similar services have been challenged in legal actions in various jurisdictions, a few of which we’ll touch on below. Defending against constant streams of lawsuits (pun intended) in various courts and countries — each of which has distinct laws and thus require specially tailored legal defenses — can put a financial strain on companies less economically endowed than Google (which owns YouTube). This has certainly happened in the U.S. before: a flurry of suits against services that were ultimately deemed “legal” by U.S. courts (including internet TV company Veoh and the music locker service MP3Tunes), have nevertheless resulted in these companies being forced into bankruptcy. When lawsuits go global, it could be even harder for a young company to stay alive.
In the past few years, YouTube has been sued in French, German and Italian courts, amongst others, for claims of copyright and trademark infringement. In the French case, a television network, TF1, sued YouTube and a competitor called Dailymotion, claiming infringement of TF1s copyrighted content and seeking €176 million in damages. Two weeks ago, the French Court, the Tribunal de Grande Instance, found that YouTube had made sufficient efforts to remove content to which TF1 owned the broadcasting rights — through its adherence to DMCA notice and takedown policies (based on US law) and through its use of content identification tools to identify potential instances of infringement. The Tribunal ordered TF1 to pay Google €80,000 for their legal expenses, a small victory for the tech giant.
YouTube had less luck in Germany, which, like France, has a moral rights-based intellectual property regime. Last month, a German court ruled that YouTube must install filters on YouTube to prevent users from uploading music videos to which a German musical royalty collection body called GEMA holds the rights. GEMA hopes that this victory will help facilitate an equitable bargaining agreement with YouTube over the rate at which German artists are compensated for streams. Although YouTube has revenue sharing deals with a number of European countries, Germany has been holding out, demanding more money per stream than YouTube has offered. While YouTube is appealing this decision, both French and German courts have agreed that YouTube should be considered a “hosting platform,” a status that allows it some protection under EU law, and which is somewhat analogous to the DMCA designation of “online service provider.”
Additionally, an Italian Broadcasting company, Mediaset — which is owned by Italy’s former Prime Minister Silvio Berlusconi — sued YouTube back in 2008, seeking “at least” €500 million in damages for the “illegal distribution and commercial use of audio and video files” owned by Mediaset. Unsurprisingly, the Italian court found in favor of Mediaset, ordering YouTube to remove all Mediaset content on the site (although though they failed to address the enforcement aspect). Then, last year, the Italian Government dealt another blow to Google, declaring YouTube to be a TV station subject to specific regulations. This means the company is now required to pay a tax as a TV broadcaster, publish “corrections” upon receipt of a complaint that an individual has been slandered, and make sure to not broadcast content unsuitable for children during daytime and early evening hours, amongst other requirements. As a result, the costs of running the site in Italy have skyrocketed, raising the question of whether Google should pull YouTube from the Italian market.
While sovereign nations undoubtedly have the right to create and interpret the laws of their land as they please, the various international lawsuits against YouTube serves a case study in why international harmonization of copyright and trademark laws has become increasingly important in recent years. Since a number of musicians rely on sites like YouTube and other streaming services to reach an increasingly globalized audience, often expending significant time and money to craft their presences on these platforms in hopes of appealing to fans worldwide, the challenges to services like YouTube in various countries could potentially undermine artists’ ability to compete in an international marketplace.
What do you think? Let us know in the comments.