subscribe to this pageIn this case, Corbis, the owner of copyrighted photographs, sued Amazon.com for copyright infringement after several of Corbis’ photographs, without its consent, appeared on third party vendor platforms hosted by Amazon.com. Amazon.com’s primary defense was that it is protected from liability for the alleged copyright infringement under the Digital Millennium Copyright Act (“DMCA”). Thus, the Corbis case is pertinent to my analysis in that many of the issues facing YouTube in meeting the requirements of the DMCA were addressed in this case.
The Corbis court addressed the DMCA’s requirements that the service provider 1) not have actual or apparent knowledge of the infringing activity and 2) not have the ability to control the content of users’ postings. The Corbis court ruled that actual knowledge requires that the copyright holder provide evidence that it notified the service provider of the specific infringing material. The court also found that Congress contemplated that apparent knowledge of infringing activity requires that the service provider turn a blind eye to red flags of “pirate sites.” For purposes of my paper, the extent to which user sites are obviously infringing will be critical to the application of the knowledge test.
The Corbis court also amplified the DMCA’s right and ability to control test. It explained that the ability to control the infringing activity cannot simply mean the ability of the service provider to remove or block access to materials posted on its website or stored in its system. According to the court, there must be some level of active involvement with content decisions. In the case of YouTube, its screening techniques and its technology for identifying and removing infringing videos will be relevant to determine whether YouTube runs afoul of this requirement.
Whether or not YouTube satisfies the requirements of the DMCA, including its level of knowledge and the ability to control infringing activity, will be fact dependent. However, the court’s analysis in Corbis and its discussion of the DMCA’s legislative history will be helpful in applying the facts of the YouTube litigation to the law.
In this case, Costar Group Inc. v. Loopnet, Inc., Costar, the owner of numerous copyrighted photographs, sued Loopnet, an internet company that listed commercial real estate on its website which included some of CoStar’s copyrighted photographs, for direct and contributory copyright infringement. As in the YouTube case, Loopnet sought refuge in the protection of the Digital Millennium Copyright Act (“DMCA”). One of the critical issues for YouTube to successfully invoke the protections of the DMCA will be whether or not it receives a direct financial benefit from the infringing material on its website. The Costar case sheds light on this element of the DMCA.
In the Costar case, the court ruled that Loopnet did not receive a financial benefit directly attributable to the infringing photographs. In reaching that conclusion, the Costar court relied on the legislative history of the DMCA and related case law. The court found significant that Loopnet did not charge a fee for posting any real estate listing, whether it was with a photograph (thus potentially infringing) or without a photograph (non-infringing). It rejected Costar’s claim that Loopnet financially benefited by having infringing works on its website which enhanced the attractiveness of its website to potential customers. The Costar court found that this type of financial benefit was an indirect benefit, not the type of direct benefit required by section 512(c)(1)(B) of the DMCA. However, there is another line of cases (one of which is included in my Annotated Bibliography – Perfect 10 v. Cybernet) which concludes that there is a direct financial benefit where the infringing material acts as a draw that attracts subscribers to the website. That line of cases could be problematic for YouTube. In the case of YouTube, the manner in which it generates income will be critical to the application of the financial benefit test. Specifically, YouTube’s advertising revenue will be considered in light of the Costar financial benefit analysis as well as the alternative analysis that focuses on the potential draw of the infringing material.
In denying Viacom’s allegations of direct and secondary copyright infringement, YouTube will seek to obtain the protection of the safe harbor provisions of the 1998 Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. 512. A finding that YouTube satisfies the DMCA’s safe harbor requirements would immunize it from monetary damages or injunctions even if it were found to have directly or secondarily violated the copyright laws. The statute explicitly mandates a series of threshold requirements (17 U.S.C. 512(i)) and core requirements (17 U.S.C. 512(c)(1)) that a service provider must meet to be entitled to safe harbor protection. Most problematic for YouTube will be whether it meets the DMCA’s core requirements under section 512(c)(1)(A),(B), and (C). Subpart A requires that the service provider not have actual or apparent knowledge that the material on its network infringes on the rights of a copyright holder. The legislative history will be examined to determine the scope of “apparent knowledge” including an examination of the “red flag” test stated in the Congressional Reports dealing with the DMCA. Subpart B requires that the service provider not receive a financial benefit directly attributable to the infringing activity where it has the right and ability to control such activity. Of critical importance to Subpart B will be YouTube’s business model for generating revenue from advertisements. Subpart C requires the service provider, upon notification by the copyright holder of claimed infringement on its website, respond “expeditiously to remove” the infringing work. Both Viacom’s arguments and YouTube’s counter arguments will be examined in an effort to determine whether YouTube’s removal policy conforms to the DMCA requirements.
My paper will address some of the conflicting cases that have examined the various sections of the DMCA described above and rely on the legislative history at H.R. Rep. No. 105-551 (1998) and S. Rep. No. 105-190 (1998) to amplify congressional intent. Critical to my analysis will be the application of the facts of this lawsuit to the language of the DMCA, taking into account its legislative history, to determine whether YouTube should meet the requirements of the DMCA’s safe harbor provision.
This article written by Lawrence Lessig, a professor at Stanford University, sees Viacom’s lawsuit against YouTube as preempting Congress’ preeminent role in determining copyright law. Lessig cites to case law and the Constitution to conclude that sound policy and history support deference to Congress when major technological innovations alter the market for copyrighted material. He opines that Viacom is trying to play an end run around Congress and the 1998 Digital Millennium Copyright Act (“DMCA”) with its lawsuit against YouTube.
He explains that the DMCA was intended to protect copyright owners while making it possible for internet service providers to avoid crippling copyright liability. It achieved this result by immunizing the internet service provider from liability for infringing material posted by its users as long as it removed the infringing material upon notice by the copyright holder. According to Lessig’s article, the statute expressly places the burden of policing content on the copyright holder and not on internet service providers like YouTube. Through its complaint, Viacom is trying to shift that burden onto YouTube.
Lessig claims that Viacom, not satisfied with a Congressional statute, is turning to the courts to “update the law.” According to this article, it is not the role of the courts, but rather the role of Congress to modify the DMCA’s safe harbor provision. He states that Viacom’s lawsuit will result in the internet facing years of uncertainty in litigation and possibly undermining the intent of Congress to forge a cooperative relationship between copyright holders and online service providers through the DMCA’s statutory framework.
The underlying assumption in this article is that YouTube will have a valid defense under the DMCA to Viacom's claims of infringement. This paper will critically analyze Lessig's fundamental assumption that the DMCA provides a viable defense for YouTube. An important part of this analysis will be Lessig's argument that the court should defer to Congress. Specifically, the paper will keep in mind Congress' intent in enacting the DMCA and its balancing of the rights of copyright holders with the need to protect internet service providers who are the pioneers of an emerging means of communication.
This article written by Michael Fricklas, general counsel at Viacom, sets forth Viacom’s legal and factual arguments supporting its position that YouTube should not be afforded safe harbor protection under the Digital Millennium Copyright Act (“DMCA”). First, he argues that YouTube is not the kind of entity envisioned by Congress in enacting the DMCA. YouTube, he claims, is more than a storage service provider; it is an entertainment destination. Second, Viacom’s attorney claims that YouTube’s policies with regard to infringing content are selectively implemented with more proactive action given to companies in which it has a licensing agreement. Third, the rampant unauthorized copyrighted material on YouTube demonstrates that it has the requisite knowledge of infringing activity. He cites as further support for a finding of knowledge the fact that YouTube creates a list of “featured videos” on its home page. Fourth, Mr. Fricklas states that YouTube receives a direct financial benefit from infringing activity. He contends that infringing content generates popularity and more viewers which increase advertising revenue. Fifth, he asserts that YouTube has the ability to control content. As evidence of this fact, Mr. Fricklas states that YouTube’s managers remove pornography. Finally, as a policy matter, he claims that requiring copyright owners to patrol the web on an ever burgeoning number of sites would be unfair. Forcing YouTube to obey copyright laws would not stifle innovation. Instead, Viacom’s attorney argues that protecting intellectual property spurs investment and thereby the creation of new technologies. It is, therefore, critical that the law ensure that YouTube respect the rights of copyright owners, like Viacom.
Mr. Fricklas’ arguments are, of course, partisan. However, they shed light on Viacom’s perspective and the facts that it may rely upon during the lawsuit. The article also crystallizes some of the hurdles that YouTube will have to overcome if YouTube is to receive safe harbor protection. In reaching my conclusion as to whether YouTube should meet the DMCA’s requirements, it will be necessary to present and analyze Viacom’s arguments. This article will be helpful in that regard.
Perfect 10, an adult entertainment website, sued Cybernet Ventures, an online age verification service, for infringing photographs found on its affiliated websites. In this case, the court refused to provide Cybernet with safe harbor protection under the Digital Millennium Copyright Act (“DMCA”). The reasoning of the court provides some insights into whether or not YouTube will be protected by the DMCA.
In determining whether Cybernet would be afforded safe harbor protection, the court analyzed each of the DMCA’s requirements. The court looked to the legislative history as guidance and relied upon Congress’ mandate to “take a common-sense, fact based approach not a formalistic one.” Overshadowing much of the court’s discussion was evidence of Cybernet’s attempt to undermine the intent of the DMCA to forge a working relationship between copyright holders and service providers. Of particular importance was the fact that Cybernet, after receiving notice from the copyright holder, failed to expeditiously remove infringing material from its system evidencing bad faith and undermining congressional intent.
Also significant for purposes of my paper is the Cybernet court’s analysis of the DMCA’s direct financial benefit test. Here, the court found a direct financial benefit where Cybernet’s income was based on the number of new users to affiliated sites including infringing sites. The court found that the quality of Perfect 10’s copyrighted images attracted new subscribers. Thus, the infringing images acted as a draw which increased Cybernet’s revenue. This case could be problematic for YouTube since Viacom has argued that the infringing works on YouTube’s website attracts more users which in turn drives higher advertising revenue. Accordingly, the manner in which YouTube generates its revenue will be highly relevant to the financial benefit test. Whether YouTube satisfies the financial benefit test will be analyzed under Cybernet’s reasoning, other court opinions, and the legislative history that interprets the direct financial benefit test.
This law review article analyzes whether or not YouTube will be able to defend itself against Viacom’s claim of copyright infringement under the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”). The author examines the case law concerning the specific requirements of the DMCA including: 1) qualifying as a service provider; 2) the actual or apparent knowledge test; 3) the direct financial benefit test; and 4) the ability to control the infringing activity test.
What is particularly helpful to my paper is that the author provides extensive information on YouTube’s business operations. The article details the automated and user generated nature of YouTube’s site which is relevant to the DMCA’s knowledge and control tests. It also provides a discussion of how YouTube generates revenue. An analysis of YouTube’s revenue stream is relevant to the financial benefits test required under the DMCA. The article’s discussion of YouTube’s business will be relevant to analyzing whether YouTube should meet the DMCA threshold and core requirements, which are fact dependent.
The author opines that the site’s easy to use technology provides a ready platform for showcasing original and transformative videos. Against this backdrop of user creativity, it is clear that YouTube’s website also contains unauthorized copyrighted works. However, the author provides evidence of YouTube’s good faith efforts to run a legitimate business not premised on the unauthorized use of copyrighted works. Such information is pertinent to an overall sense as to whether YouTube’s purpose is to simply pirate other companies’ videos or to provide a venue for sharing new and original video content.
The author concludes that given the uncertainties surrounding how the court may interpret the various requirements of the DMCA, it is unclear whether YouTube will be afforded safe harbor protection. For the purpose of my paper, this article will be helpful in providing factual information as well as citations to various court decisions which I will read and analyze so that I can reach my own conclusions concerning the application of the DMCA to YouTube.
The Digital Millennium Copyright Act (“DMCA”) requires the adoption and implementation by the internet service provider of policies related to users who post infringing videos as well as the expeditious removal of infringing videos upon proper notification by the copyright holder. Accordingly, an analysis of YouTube’s business policies is pivotal to determining whether it will receive protection under the DMCA. YouTube’s Terms of Use spell out its policies with regard to posting unauthorized copyrighted works, repeat infringers, and termination of a user’s account.
In its Terms of Use, YouTube expressly states that a subscriber is not allowed to post infringing material. It enunciates a termination policy with regard to repeat infringers and a removal policy with regard to infringing content that will be analyzed to determine whether YouTube complies with the requirements of the DMCA. In addition, an examination will be conducted to determine whether YouTube’s actions are consistent with its written policy. How YouTube has implemented its Terms of Use ultimately will be decided on the facts. However, articles and legal publications will shed some light as to whether YouTube has reasonably implemented these policies. Also, the legislative history to the DMCA and case law will help to explain what is expected of the internet service provider with regard to the policies mandated by the DMCA.
In drafting these Terms of Use, it is clear that YouTube is striving to meet the requirements of the DMCA – in fact, its written policy expressly references the DMCA. This is important both in terms of meeting the various DMCA requirements as well as showing the court that it is not Grokster-like, but rather is trying to make a good faith effort in stopping infringing videos from appearing on its website. Weighed against YouTube’s purported good faith are Viacom’s claims that repeat infringers can recreate new accounts on YouTube in a matter of minutes and that YouTube through its technology prevents copyright holders from identifying all of the infringing material on its website. An analysis of YouTube’s Terms of Use and its implementation -- viewed from both parties’ perspectives -- with regard to termination and removal policies will be critical in determining whether YouTube receives protection under the DMCA.
This law review article written by Jason Breen from the UCLA School of Law analyzes YouTube’s defenses to the Viacom lawsuit and, in particular, the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”). The article examines each of the requirements mandated by the DMCA and how those requirements have been interpreted by the courts. It also points out where some of the court decisions appear to be inconsistent.
This article examines requirements of the DMCA that YouTube must meet in order to qualify for safe harbor protection. First, the author reviews whether YouTube accommodates “standard technical measures” used by copyright owners to identify their copyrighted works as required by section 512(i) of the DMCA. Second, as the protections of the DMCA are only available to qualified service providers, this article examines whether YouTube will qualify as a service provider and notes that the courts have broadly interpreted this provision. Third, YouTube must establish that it does not have actual or apparent knowledge of the infringing material. By providing a plethora of cases, the article concludes that the high standard of proving the provider has the requisite knowledge would likely weigh in YouTube’s favor. Fourth, according to the article, a more difficult hurdle for YouTube to meet is the requirement that YouTube not receive a financial benefit directly attributable to the infringing activity where it has the right and ability to control such activity. The article points out two conflicting lines of judicial reasoning regarding this two-part test. Using citations provided by this author and after reading several of these cases (some of which are included in this Annotated Bibliography), I can address in my paper how these conflicting theories might impact YouTube’s defense under the DMCA.
The author concludes that it is likely but far from certain that YouTube will be able to avail itself of the DMCA’s safe harbor in light of the uncertainties in the law and factual questions as to YouTube’s operations. This article is helpful in analyzing YouTube’s operations, Viacom’s allegations, and in providing citations to court decisions which I will read and apply to the facts of this lawsuit in order to make my own judgment as to whether YouTube should prevail under the safe harbor provision of the DMCA.
This article written by Fred von Lohmann, attorney with the Electronic Frontier Foundation, examines how YouTube would fare under the copyright law and, in particular, the Digital Millennium Copyright Act (“DMCA”). According to the author, the stakes are tremendous because YouTube’s website hosts infringing copyrighted material but it also facilitates the free flow of information and spawns original and transformative creativity. The author opines that in light of YouTube’s business operations it legally should be shielded by the safe harbor provisions of the DMCA. However, he cautions that YouTube must continue to walk a careful line so as not to run afoul of the safe harbor requirements.
The article examines several of the DMCA’s requirements mandated by Congress. First, the author examines YouTube’s policy in implementing the termination of repeat infringers and the removal of infringing content. He concludes that YouTube’s written policy and implementation meet the DMCA’s requirements concerning termination, as well as notice and take-down. Second, the author finds no obvious pirate sites on YouTube which is an important factor in analyzing the knowledge requirement. Third, in examining the direct financial benefit test, Mr. von Lohmann explains that it represents an important hurdle for service providers. In the case of YouTube, he finds that it has chartered a cautious course by putting advertising only on search result pages rather than on the clip pages themselves. He suggests, however, that YouTube may feel increasing pressure to develop innovative business opportunities other than by limiting the placement of advertising on its website. In that regard, YouTube will have to experiment with different revenue strategies that do not run afoul of the DMCA.
For purposes of my paper, this article provides valuable information on YouTube's business operations. According to the author, YouTube largely complies with the requirements mandated by the DMCA, but the financial benefit test could be problematic for it. In determining whether YouTube should successfully meet the requirements of the DMCA, an examination of YouTube's operations will be critical and this article will be helpful in that regard.