While the Internet promotes creativity and diffusion of ideas and entertainment, it has also enabled widespread dissemination of copyrighted materials. This class action lawsuit filed by Viacom International Inc. against Youtube in 2005 details the large-scale infringement Youtube has committed against music, film, and television companies. Although Youtube claims the websites purpose is to provide a forum for "user generated" material, the website contains innumerable copyrighted content. One could view clips from every genre of film or television and music clips from live shows or music videos. The plaintiffs hold Youtube responsible because they have enabled the format for such infringement without assuming the responsibility of monitoring the content. Furthermore, the plaintiffs argue "the availability on the Youtube site of a vast library of the copyrighted work is the cornerstone of the Defendant's business plan." Because Youtube makes significant profit off of these copyrighted works, they leave it to law abiding individuals and copyright owners to monitor the site. Even if the site removes the illegal content once notified, it usually returns to the site within no time. Moreover, Youtube has devised a feature that precludes copyright owners from finding infringing videos.
Viacom holds Youtube responsible because the site "knowingly reproduces and publicly performs the copyrighted works" and allows for extended distribution by enabling one to "embed" a video into another website. Although users are the ones who originally upload the content, Youtube converts the material to their own software format for display and reproduction. More importantly, such websites dissuade people from producing creative works in fear their copyrights will be violated and subject to egregious exploitation. Youtube acknowledges such illegality by sending cease and desist letters to people who provide software that can be used to make copies of Youtube's videos. Youtube sites that such copies are "unauthorized" yet the plaintiffs recognize that Youtube does not want such copies available because they need viewers for their own site to retain advertising revenues. As compensation for Youtube's violations, the plaintiffs order that the defendants device a system to prevent infringement and provide statutory damages for past and present infringements amounting to at least one billion dollars.
This lawsuit directly pertains to my paper in that it shows the legal measures the film industry is taking to combat piracy. Because my paper also focuses on the evolution of the industry in this online world, it is important to note the setbacks such technological develoments have caused for the industry.
Fred von Lohmann
Aritcle: July 10, 2006
This article, written by Fred von Lohmann, briefly overviews the YouTube company and its legal liability as an online host of material, specifically videos. Lohmann attempts to explore how YouTube stands under protection by the Digital Millennium Copyright Act (DMCA) from copyright infringement cases. He outlines and gives examples of how YouTube could be violating copyright laws but also explains why its existence might be a protected under fair use. YouTube could be responsible for countless charges, as it hosts infringing copyrighted and unlicensed material, but as an online-service provider, it is protected by the DMCA from the habits of users.
The author then goes on to explain the terms under which online hosts are protected from damage costs, if their users do infringe copyright laws. These services must be able to notify users and remove from the system any material claimed to be of copyright infringement by an owner. YouTube must also terminate users deemed to be repeat infringers. Additionally, protection will be removed if YouTube is aware of any associated piracy or illegal activity. Finally, if there are any revenue-generating ads closely tied to infringing activity, protection would be lifted.
This poses a problem, as much revenue is generated for YouTube by ads. As a result, ads can only be placed on search result pages and not those of clips. YouTube must use caution as a growing business by specifying the placement of ads before, during and after videos. Lohmann also provides a few examples of how YouTube could generate revenue through careful advertising, such as the use of the “featured videos” section.
Relating to my paper, this article articulates points crucial to the understanding of the simple arguments on both sides of whether YouTube exists as a safe and legal organization. It outlines the business concerns on which YouTube’s liability dependent. This article shows how it is important to explore the many aspects of the company that would affect it’s status under the DMCA’s requirements.
This is the case, long awaited, between Viacom and YouTube. In this case, Viacom makes a number of requests compelling YouTube to release information as well as media and content. While there are eight motions, they are not all granted; five are denied. This is interesting, as we must note the reasoning behind Judge Louis L. Stranton’s decisions on July 1, 2008.
In favor of YouTube, the motion to compel production of search code is denied, and the cross motion for a protective order of the source code is granted. This is based on the reasoning that such a disclosure would expose a trade secret (that costs thousands of man hours) and that there is no evidence that such a tool could even filter out infringing videos. The motion to compel production of the source code for the Video ID program is also denied on the grounds that it is also a trade secret and Viacom doesn’t make a significant showing of need. Also, YouTube claims that they could figure it out by using it. Judge Stranton does grant the motion to compel production of all removed videos. Viacom claims that access to all of these files is necessary to identify any infringing videos (but burden of such a task lies on Viacom). It is also granted that YouTube produce all data from Logging databases concerning each time a video is viewed on the website or on a third-party website. This passes because of the insufficiency of an IP address to identify personal information. The motion to compel production of all those data fields which defendants have agreed to produce for works-in-suit, for all videos that have been posted to the YouTube website is denied because “No sufficiently compelling need is shown to justify the analysis of “millions of pieces of information” sought
by this request.” He also denies the motion to compel production of the schema for Google Advertising databases, but grants for the schema regarding the Google Video Content database. This is because the plaintiffs have already been promised the only relevant data in the database, they do not need Google’s confidential map of how it runs its advertising business. Viacom is also denied the ability to access all private videos, except the data related to these videos that is not the actual content.
This is essentially the main case that I will use as an example in my paper in determining whether or not YouTube’s business violates copyright laws. I hope to explore my other sources as well to see if there are any rulings that I do not agree with. It is important to note that the Judge’s decision is not to shut down YouTube, but to assure that any infringement is addressed, while maintaining YouTube’s ability to function as a unique video sharing network.
Robert Tur is an award-winning helicopter pilot and journalist who does business licensing and selling videos, photographs, and a variety of other products found useful by all kinds of media including Internet, television, radio, motion pictures and print.
This case is of interest to me, because it shows an interpretation of the legislation that opposed YouTube.
On July 14, 2006, Tur filed this action for copyright infringement and unfair competition against YouTube claiming that his videos were uploading to the YouTube server and made available to the public without his permission. In October of the same year, YouTube claimed safe harbor protection under the DMCA as codified in 17 U.S.C. 512(c), which states that “In general, a service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if...”
The DMCA applies this protection to internet service providers on the condition that certain requirements are met (These requirements are explained in my other articles and cases.)
In this particular case, the court makes its decision on the criteria that the DMCA requires the provider to have the “right and ability to exercise control over the infringing activity on its site.” As defined by other cases (mentioned in this particular case), this right and ability is more than just the ability to remove or block access to content that has been flagged. The requirement includes some antecedent ability to limit or filter copyrighted material.
The court denies YouTube’s motion. I cite this case in order to show a case that looks like it will be a problem for YouTube if any other cases appear. With such a high expectation for the ability to prevent infringing material from going public, YouTube is pressured to develop some technology to allow this screening, otherwise their liability may put them in a hole, financially. I find this case to be a different interpretation of the DMCA legislation than my previous sources. This should provide a basis for a counter-argument.
Vanderbilt University – Law School
Vanderbilt Law Review
Trevor Cloak, The Digital Titanic: The Sinking of YouTube.com in the DMCA’s Safe Harbor, 60 Vand. L. Rev. 1559 (2007).
In this article, Trevor Cloak begins by introducing the start-up of YouTube and how it soared in popularity to eventually be purchased by Google for its advertising revenues. He then continues by describing how it is potentially protected by the DMCA given its status as a qualified ISP. Cloak devotes a section to describe copyright law prior to the DMCA and how issues were dealt with before the safe harbor provision could be applied toward the liability of certain companies (ex case: Playboy Enterprises, Inc. v. Frena, p. 1567 and Religious Technology Center v. Netcom Online Communication Services, Inc. p. 1568.) Netcom was ruled not directly liable for infringement because it didn’t directly facilitate the infringement. Automated processes did so without the knowledge and deliberate uploading of the operators. Questions were raised howeer, if it received and financial benefit from the infringing material.
YouTube may or may not have been considered to be a Direct Copyright Infringer depending on how the legislation is interpreted (prior to the DMCA) (p.1572 – use Netcom case as example). In addition, however, YouTube could be guilty of Vicarious Copyright Infringement (p 1573-1576). The DMCA as a result, allows these charges to be lifted and for the promotion of creativity.
This article provides a few new interpretations on the ability of YouTube to seek safe harbor protection. I hope that the historical cases that it provides as examples will be of aid in determining how the courts have traditionally viewed the copyright issues.
This case provides an example of when a service provider was not granted the safe harbor protection of the DMCA. Perfect 10, a nude-women-photos website and magazine, claim copyright, trademark, and rights of publicity violations against Cybernet Ventures, an age-verification service (AVS).
Cybernet Ventures is the largest web AVS and it create revenue from users registering their website, usually getting there via links from affiliated sites, to whom Cybernet pays commission. In response to Perfect 10’s claims, Cybernet attempted to hide its direct financial interest or relationship, claiming that even 10,000 infringing images wouldn’t establish significant worth (pg 25 of pdf). In doing this, it attempted to cover up a strong argument that wouldn’t allow it to afford DMCA protection. In addition (on pg 25), we see that Cybernet failed to quickly take action in removing infringing material after Perfect10 produced a copyright infringement notice. This conflicts with the DMCA’s “notice and take-down” provision.
The court refused to apply the DMCA safe harbor protection on Cybernet, due to those mentioned reasons. Cybernet simply did not meet the requirements as stated in section 512(c) regarding financial benefits and immediate takedowns. Between these two ideas, the financial benefits test will be of most relevance to YouTube’s standing, as we know much of its revenue is based off ads and user visits. Just as the infringing pictures helped boost Cybernet’s revenues, the infringing videos probably increases YouTube advertisement revenues. I think this could provide a historical case for the determination of YouTube’s legality, depending on what is found concerning YouTube’s ad placements.
Hendrickson v eBay et al
165 F. Supp 2d1082 (C.D. Cal. 2001)
U.S. District Judge Robert J. Kelleher
September 4, 2001
In this case, Hendrickson is the copyright owner of a movie and wants to sue Ebay, an Internet auction website along with two employees, claiming that they infringed copyright laws. Ebay moved for summary judgment, relying on the safe harbor provisions of the DMCA (Section 512).
It seems as if the case was decided based on the actions (or lack of) of Hendrickson. Ebay did not have actual knowledge of the sale of infringing items, as Hendrickson’s notice didn’t match the requirements of the DMCA. It didn’t contain a statement adequately identifying the infringing material.
There was also an issue concerning Ebay’s right and ability to control infringing activity. Ebay didn’t have the right and ability to exercise control, and so was immune to liability under the safe habor provisions of the DMCA. Richter and Ebay were determined to be innocent infringers, not knowing that any type of infringement was resulting from the sales.
In dealing with content control, YouTube states that it reserves the right to determine if User Submissions (video or text) are appropriate by their own discretion and to remove these User Submissions if deemed necessary without the prior notice to the user. This shows how YouTube has put forth the effort to prevent or stop infringing videos, unlike the case of Grokster, which explicitly attempted to spread unlicensed material.
Taking these policies and actual enforcement of these policies into consideration, we have a better idea of YouTube’s goals. It is important to also consider the actual enforcement, as evidence of YouTube not taking action would be detrimental in its protection by the DMCA. The DMCA is also mentioned in the agreement, explaining how to submit any copyright infringement notices if necessary.
These Terms will serve, in my paper, to provide evidence that YouTube in fact promoting legal and acceptable behavior. It serves as a strong point to show that YouTube includes these Terms in order to seek safe harbor by the DMCA.
Jason Breen – UCLA School of Law
In this article, Jason Breen briefly examines how YouTube would fare under different theories of copyright infringement and then discusses if the DMCA would be able to provide a safe harbor if YouTube is determined to be liable for infringement. The article reviews YouTube based on the different criteria as listed in the DMCA. The article goes through the different requirements as listed by a few of my other sources.
This includes technical and logistical issues such as how it operates or notifies its users of copyright law. It also assures that YouTube is, in the aspects of the DMCA, considered a qualified service provider, because nothing else is protected under section 512 under Title II. The topics of not knowing of the infringement or not having the ability to control infringement also lead to the belief that YouTube will be defendable. Additionally, as YouTube relies on advertisements to generate revenue, the close associations between ads and infringing videos throughout the website could render YouTube disqualified for the safe harbor provision.
While this article is much longer, it should serve as a great source that goes into more detail in the subtopics that should be analyzed in determining its protection. It also takes YouTube and compares it to a number of older services that suffered under copyright infringement law, such as Aimster, Grokster, and Napster.
Name: Branwen Buckley (J.D. Candidate, Columbia Law)
Branwen Buckley, a J.D. Candidate (2008) at the Columbia Law School, analyzes the possibility of YouTube defending itself under the protections the Digital Millennium Copyright Act (DMCA) against Viacom’s claims of copyright infringement. In this article, Buckley discusses the criteria of the DMCA in first, an objective manner. In doing this, she also shows how these points support and go against YouTube’s position.
She then provides several cases including Religious Technology Center v. Netcome, and Costar Group, Inc v. Loopnet, Inc. to show how YouTube could be a passive conduit for content posted by users. It goes into detail how YouTube operates as a business, generates revenue and financial benefits, manages links, and deals with notifications of infringement. It also describes the automatic user generated system which operates the websites.
It gives a Fair Use Analysis, descriptively going through the four criteria as stated by the Copyright Law.
In the case that YouTube loses the case, she describes both Primary and Secondary liability and is likely or unlikely to happen in regards to that.
This article will be helpful, simply by providing all of the information outlined above, in addition to some opinions and possible outcomes. She recognizes that while there is much copyright infringement, the website seems to be made to promote a sharing of original, transformative, and creative videos. YouTube’s user agreement shows this.
This is probably the most helpful article I’ve gone through so far, as it provides facts, opinions, and gives both an objective and subjective view to the case.
Why We Fight is a video produced by members of the Writers Guild of America during the Writer's Guild Strike of 2007-2008 to state and explain their position on what they were asking for in the negotiations. The video is both an editorial on the disagreement, but also represents a primary source of information that helped move the events of the negotiations. The video was distributed via YouTube, which is fitting with its content about the fight over digitally distributed media.
The video lays out the background of the writer's demands. Namely that after television proved an important revenue stream for the repeated play of theatrical films and the syndication of television shows, the writers had rightfully convinced the studios to pay them a 2.5% residual for any replaying of a written work after the initial play period. The video states this as a given fair standard. It goes on to say that when the home video market came about, they agreed to reduce their residual by 80% for home video revenue in order to allow the studios to experiment with the new technology. This is due to the calculation formula that sets aside 80% of wholesale receipts before applying profit participation on the remaining 20%. The video continues by making the argument that not only should the current home video residual be raised to .6% as compensation to "give back what we've given up," but also that media that is delivered through downloaded content or streaming should be using the 2.5% residual for free television.
The video does make one important relevant claim. It suggests that in the future, all television may be delivered digitally through technologies similar to IPTV or other forms of internet television. It claims that the studios will use this change to support paying the lower internet residual instead of the higher television residual. This claim is supported by evidence that studios that resisted new forms of technology in the past, using the threat to gain concessions from the guilds, have later embraced the technologies and earned more revenue as a result. While internet delivery of television and movies is not yet profitable, it may become the most profitable channel in the future.
The complaint filed in the case Viacom et al v. YouTube et al, shows the potential harms from digital distribution of content. In the complaint, Viacom contends that not only does YouTube provide a service in which it is possible for users to post copyrighted material, they encourage it and have infringed copyrights for the purpose of promoting and growing the website. The complaint decides to sidestep the DMCA and make a charge based on previous copyright law. They argue that YouTube is not providing the necessary resources to copyright owners to stop infringing material, and that they are purposefully failing to stop the uploading of copyrighted material. This charge contains two important pieces of information for the topic of new media distribution. One, that there is a market being monetized of copyrighted material, and two, that there is rampant piracy and costs with preventing this piracy.
The complaint makes a strong yet unsubstantiated claim that the majority of web traffic to YouTube is driven by copyrighted material. Anecdotally and unscientifically this does not seem to be an accurate description. Looking at the "Most Viewed" clips on YouTube, the lists are dominated by user generated content. Most of the viral clips that have become representative of Web 2.0 were user generated. The few notable exceptions being Saturday Night Live's Digital Shorts which were promptly taken down by YouTube before being uploaded to NBC.com and Hulu.com by NBC. In this view that is as scientific as the complaint is, it does not seem to hold true that it is copyrighted material that is driving web hits. In addition, YouTube had in place a 10 minute limit to any video clip (albeit for mainly storage limitation reasons) that would have precluded any longform entertainment to be posted.
This debate brings up the discussion of now three types of new media content. Copyrighted material created for traditional media that is reused in new media, new media created and produced for digital distribution by professional producers, and user generated content. In this case it seems that YouTube is dedicated to being the market leader in user generated content, while allowing other sites such as Hulu.com to be the standard for redistribution of traditional media.
This source linked is only McCain - Palin’s initial correspondence to YouTube. YouTube’s response can be viewed here:
This letter by the McCain campaign expresses former presidential candidate’s displeasure with YouTube over questionable infringement claims made by the national news media. After the campaign created advertisements using well known video clips from national media sources and uploaded them to YouTube, news organizations like CBS sent YouTube DMCA takedown notices for hosting videos that they believed infringed on their copyright. Central to their claim was the fact that they did not want their videos and personalities to be seen as endorsing one candidate or another. YouTube promptly removed the videos, which drew the ire of the McCain campaign. Even though YouTube was properly following DMCA protocol, McCain lamented that the process would take too long to be resolved (between 10 and 14 days), and asserted that YouTube should make a fair use judgment itself before removing the video. McCain asked for special treatment, allowing for videos uploading by the official candidates’ campaigns to be looked at differently when receiving takedown notices. In YouTube’s response, the video host declined these requests claiming that it was simply following the procedure laid out in the DMCA to protect its safe harbor status, and that they could not discriminate between uploaders. A McCain representative asserted that the DMCA does not necessarily define with what specific speed a host must comply with a takedown notice, and responding automatically is not mandated.
This situation provides one of the central examples I will use in my paper. McCain’s difficulties with the intricacies of the DMCA provide a high profile example of how certain provisions can be abused. It is particularly valuable because even though the correspondence is between the McCain campaign and YouTube, both organizations are effectively complaining about the takedown and notice process, albeit to different degrees. Even as YouTube says it is simply following protocol, it criticizes those who abuse the takedown process. Meanwhile, the McCain campaign reiterates the problems many see in the lack of timely recourse alleged infringers have in the process.
In this article, Paul Alan Levy echoes the calls by some to combat abuse of the DMCA notice and takedown system by shaming those who make illegitimate claims and the others who needlessly comply, as well as take possible legal action against them. Levy also argues that the better approach would be to reform the DMCA itself, especially since both the McCain and Obama had problems with the system, and both would be a position to change the law regardless of the election outcome. He proposes 5 specific changes in the DMCA. The first would be to allow ISPs and service providers to not effectively be required to immediately takedown allegedly infringing material, while still maintaining safe harbor status. Secondly, he proposes making it easier for people who receive bogus takedown claims to receive compensation via statutory damages, presumably deterring copyright holders from filing false claims. He also suggests notification by the service provider to the possible infringer before the content is removed, as well as requiring takedown notices to be submitted to a public database for viewing. Finally, Levy argues for all intellectual property types to be protected, not just copyright. His agenda is put forth at a time when both potential presidents, having felt the negative effects of the DMCA, may be more motivated to remedy it.
This article is extremely beneficial in that it outlines a significant number of ways to amend the DMCA and resolve the current notice and takedown problem. His position is not explicitly based in anger, aggravation, or retribution, and offers a clear list of ways to fix a broken system. I will primarily use this article to offer constructive remedies to the problem I plan to expose. Particularly, his suggestion to allow the service provider to notify the alleged infringer prior to the content being removed, while simultaneously not surrendering its safe harbor status, is a proposal not without flaws, but could possibly be an important part of the recommendations I make to fix the system.
This legal analysis by Fred Von Lohmann of the Electronic Frontier Foundation is empathetic of the McCain campaign’s fair use/YouTube problem, as the EFF has been championing internet freedom and fair use principles for many years. However, he is highly critical of McCain proposed solution, which would put the burden on YouTube to conduct legal reviews of videos posted by political candidates that receive takedown notices. He thinks this notion is backwards, since in terms of political speech, amateur commentators are the ones that need special protection from phony takedowns. Despite the failings of the McCain proposal, he goes on to identify the true problem in these situations: the news media organizations. He believes it is their responsibility to refrain from sending bogus takedown notices for legitimate fair uses. As for a recommended response by the public when they don’t, he encourages public shaming of the companies, as well as potential lawsuits for submitting a takedown they knew was illegitimate. He also supports the claim made by the McCain campaign that it is not incumbent upon YouTube to follow this strict procedure in the case of fair use, which YouTube itself could reasonably determine with human intervention.
Lohman’s analysis will be useful in that it finds fault with all parties involved in the process: the alleged infringers, the copyright holders, and the host. He also puts forth a compelling reason why McCain’s solution would not be ideal from a societal point of view. The actual reason McCain’s proposal was rejected was because YouTube said that their hands were tied in the process; Lohman says that even if YouTube could treat politician's videos differently, they still shouldn’t. The author is transparent in placing most of the blame on the news organizations themselves. Other articles refrain from making the obvious claim that if it weren’t for the media foolishly asserting a broad claim to copyright, this wouldn’t be a problem. Finally, he corroborates the assertion made by the McCain campaign that YouTube does not necessarily need to act with as much immediate speed as it says it does.
This order from the US District Court for Northern California rejects Universal Music Group’s request to dismiss the lawsuit against the music company by Stephanie Lenz. Months after posting a clip of her son dancing to a Prince song to YouTube, Universal asked the video host to remove the clip, claiming she was infringing their copyright of the song “Let’s Go Crazy.” Following the procedure under the DMCA, Lenz told YouTube that her video was legal, and it was restored – Universal did not pursue legal action against Lenz since her use was clearly fair. However, in conjunction with the EFF, Lenz sued Universal for acting in bad faith, and asked for compensation covering her legal costs. She alleged that Universal specifically did not “belie[ve] that [Lenz] actually infringed a copyright,” and that its takedown request was entirely improper. This order covers the most recent development, with Judge Jeremy Fogel refusing to dismiss the lawsuit as Universal wanted, and declaring that copyright holders must take fair use into account before issuing DMCA takedown notices. Universal had argued that it was not incumbent on copyright holders to consider a potential fair use defense, and that doing so would be costly and disruptive. The Judge rejected this argument, and while admitting that he did not believe it to be likely that Lenz could eventually win the lawsuit against Universal, still allowed it to progress nonetheless.
Fogel’s decision is going to play a big role in my paper, as this order sets precedent for other courts to look fair use at when determining takedown-abuse cases. The decision is unique in that it helps define what a copyright holder must do to clear the “materially misrepresents” hurdle set in Section 512, adding consideration of fair use. Previously, it could have been possible for copyright holders to more recklessly send takedown notices to service providers, and make a credible claim that they were not active in misrepresenting since a limited (and undefined) amount of care was given to the process. With the addition of fair use, the burden is higher, which I will argue is beneficial to the takedown process. Despite the judge’s assurances that adding a fair use component will not add a tremendous amount of complexity to the process, it will also be worth mentioning how many people disagree with this claim, believing that the four factor test for determining fair use is inherently nebulous and difficult to use.
Judge Stanton ruled in favor of Viacom in some aspects of his decision and in favor of Youtube in others. In favor of Youtube, he denied Viacom access to Youtube’s search code, noting that it is a trade secret that cost Youtube thousands of man-hours to produce and that it will not help Viacom determine the extent to which Youtube is liable. This decision came after numerous programming experts testified that there is currently no search code in existence with the ability to distinguish between copyrighted and non-copyrighted works. Similarly, the judge denied Viacom access to the Video ID Program. The judge also denied Viacom’s request for access to all videos currently available on the Youtube servers. Viacom claimed this would help them determine how much knowledge Youtube had relating to infringing videos, but Youtube’s response that they have been entirely accommodating to Viacom’s requests was favored by the judge. The judge stated that there is “no compelling need…to justify the analysis of millions of pieces of information.” The judge similarly denied access to the Advertising Schema, stating that this was both a trade secret and not necessary information. However, the judge favored with Viacom in many aspects, in an attempt to allow them to research how much power Youtube has over infringing videos on its website. He mandated that Youtube produce information about all videos that have already been removed so as to determine the amount of copyright infringing videos that have been available in the past. Most interestingly, he allowed Viacom access to all information about who has viewed which videos and how many times they have been viewed. This includes IP addresses, screen names, and videos viewed for every user. Viacom states that this will allow them to know, proportionally, whether copyrighted videos are typically viewed more often or less often than non-copyrighted videos. The judge also allowed Viacom access to the Google Video Content database so as to allow Viacom to determine Youtube’s knowledge of infringing activity.
This decision is interesting because it details the opinions of a judge who has considered both Viacom and Youtube’s opinions. He allows Youtube to retain several of its valuable coding secrets, but makes large concessions to Viacom to allow them to determine Youtube’s knowledge of infringing material. The reason for this decision can likely be linked to the relatively young age of cases like this. The DMCA has only been active for 10 years and many aspects of website liability for users infringing on copyrights are still uncertain. By allowing Viacom access to Youtube video records, the court is essentially hoping that Viacom will either show that Youtube is guilty of indirect liability or that Youtube has no control over the infringement beyond its current efforts. Thus, the impact of this court decision will likely come from Viacom’s analysis of Youtube video information. In my paper, I plan to further examine the same topic: whether or not Youtube is completely free from liability for infringing material.
The author, in this entry from a Web 2.0-centric blog, details Youtube’s recent efforts to both appease copyright holders and to promote creativity amongst its users. In January 2007, Youtube unveiled plans for a Revenue Sharing program which would give certain Youtube users a portion of ad revenue Youtube receives based on the number of hits their videos garner. Youtube will give even higher exposure to users labeled as “Directors,” people who are allowed to upload films greater than 10 minutes in length. Similarly, Youtube will share revenue with some copyright holders based on ad money they receive for the viewing of infringing videos. The author discusses the possibility that Youtube will have to increase the number of ads it shows to make up for the profit lost from the Revenue Sharing Program. This leads to the dilemma of Youtube losing viewers if advertisements begin to show up before minute-long clips. To increase the effectiveness of heightened advertising, Youtube may have to adopt a TV style model in which “an advertiser pays Youtube (and thus the content creator) X amount for every viewing.” To appease advertisers, Youtube’s new Audio Fingerprinting technology could be used to prevent inappropriate videos from being paired with reputable brands. This would be similar to Google Adsense which provides targeted advertising to firms. The problem relates to copyright because if Youtube adopts targeted advertising, which it has recently begun to do, it will be receiving revenue for ads placed in front of infringing videos for which it does not have deals settled with the copyright holders, thus increasing the possibility of them being vicariously liable. The solution, the author notes, is to use Audio Fingerprinting to detect copyrighted material and then inform the copyright holder, who will have the option to either remove the material or share revenue gained from the video with Youtube.
This system could potentially solve the problem of both Youtube and the copyright holder losing money from various transactions. Youtube loses money when it devotes bandwidth and time to a video only to have the video deleted due to a takedown notice. Similarly, the holder loses money wasting man hours filing takedown notices and finding the actual infringing material. If both groups work together, as Youtube intends, companies will be much less likely to sue Youtube, especially if they are actually making money from infringing videos posted online. Similarly, Youtube decreases its chance of liability because it is increasing its promotion of original works by paying some users. By offering directors a part of the revenue earned from their original and creative works, Youtube is encouraging users to make their own films rather than simply splicing together copyrighted material (which leads to zero profit for users). Thus, with the adoption of the revenue sharing plan detailed above, Youtube has simultaneously appeased the copyright holders and expanded its promotion of original material, showing courts that there are indeed significant “non-infringing” uses for Youtube.
The article extensively illustrates the development of Web 2.0 and the emergence of Youtube as one of the most popular websites on the internet. The author then summarizes Youtube’s liability protection under the Fair Harbor law. My interest in this article, however, stems from its discussion of the filtering software used by Youtube. “Youtube recently unveiled a video identification service which would create digital fingerprints of material that content providers wish to have protected.” If a video is uploaded to Youtube that matches the fingerprint of a copyrighted work, the owner can request that it be removed. Extensive tests have already been conducted: in one case, the system caught 18 instances of infringement after a service uploaded over 4400 hours of content to Youtube. After a copyright owner identifies infringing work, it can either have the material pulled or, even more incredibly, have its own advertisements added to the video. This technology is very appealing to Youtube because adopting it will show courts that it is doing all it can to remove copyrighted material. However, several factors make this protection unappealing. First, the “fingerprints” rely on a library of original content with which to match against infringing content. Thus, copyright owners will have to provide an extensive library of material to Youtube before being able to find their illegally uploaded material on Youtube. It is similarly unclear whether this technology will be able to identify slightly altered versions of original clips uploaded to the website. Fair Use advocates are equally concerned that the software will remove their own Fair Use works, mistaking them for infringing material.
This is an important article because it discusses Youtube as a company increasingly working for the Copyright holding companies rather than for its own users. Youtube is constantly in danger of copyright litigation: even the DMCA will not protect the company if plaintiffs can prove that Youtube is directly benefitting financially from copyrighted content. By signing deals with content owners that allow the owners to add advertisements to any of their content that was illegally uploaded, Youtube has cleverly created a way to profit from illegal content. Youtube also signed agreements with content owners to provide studio shows and clips on its services. This mitigates the temptation for users to upload illegal videos, especially if they can watch the legal version on the exact same website. However, by blindly implementing filtering software that automatically flags seemingly copyrighted material, Youtube may be dooming Fair Use works. Rather, Youtube should alter the filtering software so that it only flags videos that are either entirely made up of one video clip or contain a part of a copyrighted video with the corresponding audio from that clip playing as well. Many Fair Use artists will take the video but not the audio portion of a clip and mix it with other clips. Youtube can thus appease the studios and courts while still emphasizing the importance of its community of users, whom it built the website for in the first place.
Lexis Nexis Article HIGHLIGHT: YouTube may have been able to avoid copyright lawsuits by simply not having any cash to go after. But Google makes a much better target.
October 10, 2006 Tuesday 4:22 PM EST
Will Google Pay for YouTube Infringements?
BYLINE: Natali Del Conte Natali_DelConte@ziffdavis.com
SECTION: NEWS AND ANALYSIS
LENGTH: 856 words
HIGHLIGHT: YouTube may have been able to avoid copyright lawsuits by simply not having any cash to go after. But Google makes a much better target.
In early 2007, Stephanie Lenz recorded a video of her children dancing to the song “Let’s Go Crazy” recorded by Prince. She uploaded the recording to Youtube and, roughly three months later, received a takedown notice from Youtube notifying her that the video infringed on a copyright held by Universal Music. Lenz issued a complaint stating that the video was actually a Fair Use of Prince’s music and should therefore be put back onto Youtube. She said her video was not taken down based “on a particular characteristic of the video or any good-faith belief that it actually infringed a copyright,” but rather Prince’s personal desire to control all of his work. The plaintiffs in this case accept that the video includes elements that are under copyright by Prince and Universal. Their argument is whether or not the Digital Millennium Copyright Act “requires a copyright owner to consider the fair use doctrine in formulating a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” The judge in this case noted that no other court case has actually determined the merits of whether the phrase quoted above pertains to Fair Use. The judge determined that, despite no previous ruling, Fair Use is not an infringement of copyright and is a lawful use of the copyright. The court thus ordered that a brief review of potentially infringing material must be completed by content owners prior to sending a Takedown notice, to ensure whether it is a Fair Use.
This decision strengthens my paper’s argument that many potentially infringing videos on Youtube may, in fact, be examples of Fair Use. While only a small percentage of songs available on file sharing websites could be constituted as Fair Use due to the skill required to sufficiently transform songs, many videos on Youtube may be shielded from unwarranted takedown notices because of this ruling, due to the fact that transforming and mashing video clips is much easier than transforming songs. The complaint that a large portion of Youtube’s videos are copyright infringing and that Youtube encourages such videos is thus proven false. In reality, many of these “infringing” videos actually make up the user-generated content that embodies the spirit of Youtube: a community of Web 2.0 users producing unique and individual content to share with others. Had this decision not been made, unchecked takedown notices could have harmed time-sensitive and important videos that were actually examples of Fair Use. While Universal argued that this checking for Fair Use is an unnecessary waste of time, the Judge was quick to point out that the Copyright Act of 1976 established 4 simple, quick factors for determining Fair Use. This decision upholds the hard work of individuals who successfully transform copyrighted material, and it prevents large corporations and recording artists from overreaching their bounds by unfairly removing Fair Use videos. Youtube’s legitimacy as a website made up of a majority of unique material is thus upheld.
On March 13, 2007, Viacom International Inc. filed a class action lawsuit against Youtube claiming massive copyright infringement by the defendant. Viacom filed the suit after sending takedown notices to Youtube demanding over 150,000 copyrighted videos be removed from its servers. In its complaint, Viacom notes “millions have seized the opportunities digital technology provides to express themselves creatively.” However, Viacom argues that Youtube has “harnessed technology to willfully infringe copyrights on a huge scale.” Youtube, the complaint urges, has built a library of infringing video clips in order to increase profit. Rather than attempting to remove all infringing videos, Youtube “has decided to shift the burden entirely onto copyright owners to monitor the Youtube site…to detect infringing videos and send takedown notices to Youtube.” Viacom claims that Youtube increases its own value at the expense of copyright holders through the following methods: displaying advertisements above infringing videos, allowing users to embed infringing files onto other websites to draw users to Youtube and subsequently increase ad revenue, and permitting users to keep copyrighted videos hidden from the public. Viacom also notes that Youtube hosts the videos on its own servers, rather than simply acting as a conduit through which users pass files. This, in Viacom’s interpretation, makes Youtube the primary copyright infringer as it is the entity that is actually “performing” the copyrighted footage.
Youtube is one of the more influential websites in the development of Web 2.0. The website has essentially ushered in a new age of internet democratization by giving all users the ability to create and host content. Viacom’s complaint fails to take several important copyright issues into account, however, decreasing the lawsuit’s validity in several key issues. First and foremost, it assumes that Youtube has a clear intention of hosting copyright infringing content. While the court decided that Grokster, in MGM Studios v. Grokster, did not have sufficient non-infringing uses to escape liability, Youtube was developed as a website where average internet users can upload home videos. When asked about a memory associated with Youtube, users will typically discuss a humorous home movie they saw rather than an illegal movie clip. Similarly, Viacom assumes that Youtube is responsible for policing its site for all copyrighted material, failing to mention the DMCA once in the lawsuit. The Safe Harbor clause of the Digital Millennium Copyright Act, however, removes service providers from liability for any copyrighted material that users upload to their servers, specifically if the content provider removes material that a copyright holder insists is infringing. Youtube immediately removes material upon receipt of a takedown notice, typically without even ensuring that the entity which issued the notice is actually the copyright holder. Youtube is similarly protected by the Inducing Infringement of Copyrights Act, which protects sites which do not induce others to commit copyright infringement. Rather, Youtube encourages users to produce their own works.
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 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.
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.
tagged copyright_culture dmca financial_benefit_test jason_breen knowledge_test service_provider standard_techincal_measures viacom youtube by kbleic ...and 1 other person ...on 22-NOV-08
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.
Trevor Potter, the General Counsel for the McCain/Palin campaign, wrote a letter to YouTube regarding its take down of campaign videos based on overreaching copyright claims that did not, infact, infringe upon copyright protection. Potter claims that YouTube's actions, thus, silenced political speech. The letter argues that inclusion of footage from news broadcasts in campaign ads or videos serves as commentary on the issues in the reports or on the reports themselves, and based on the four factors, the ads and videos constitute fair use--
1. The uses are non-commercial and transformative.
2. The uses are factual.
3. The uses are extremely brief and do not take more than what is neccessary for the commentary.
4. The uses have no effect on the market for the supposedly infronged upon work.
Potter thus argues that this fair use is not infringing copyright and should not have been taken down. Further, he argues that the take down of such videos deprives the public. Although according the the Digital Millenium Copyright Act (DMCA) and YouTube's policies the video can be re-released in 10-14 days, this is a lifetime in terms of political campaigns, and it hurts the public to deny them access to such videos. The letter suggests that YouTube give full fair use analyses to any video posted by an account related to a campaign. The benefits to the public will far outweigh the time costs. Potter closes the letter with reference to a past case in which the judge "recognized the importance of protecting copyright from interfering with political candidates' free and full exercise of their First Amendment right to vigorously debate the issues of the day."
Many aspects of this letter scream out that claims of copyright infringement harm free speech and thus harm the public interest. Uses of copyrighted materials that are fair use cannot be denied, and when they are, it stifles political speech, which is a guranteed right of the First Amendment. To do so "deprives the public of the ability to freely and easily view and discuss" important political issues. The quote from a judge in an earlier case makes the point rather well; "Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people... The debate on public issues should be uninhibited, robust, and wide-open." He continues to argue that because the elected officials will make the decisions that undoubtedly effect the people of the nation, these people cannot be denied the right to engage in such political speech, and thus the right must be fervently protected. When claims of copyright infringment overstep their boundaries and "chill political speech," the public interest is undeniably harmed because their ability to fully participate in the political process is removed.
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.
This is the actual case in which Viacom filed an amended complaint, seeking punitive damages in addition to the statuory damages originally requested in the March 13, 2007 case.
In reference to my project, this provides an update to the ongoing case of Viacom v. Youtube. The request to amend for additional damages was denied. It was ordered that punitive damages could not be recovered in accordance with the Copyright Act.
Viacom Inernational Inc.v. YouTube, Inc. No. 95-02103. Southern District of New York District Ct. of the US. 7 March 2008.
This article covers the immediate response the YouTube had to the inital takedown request made to them on Oct 20, 2006 by the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC).
In relation to my project, JASRAC requested through DMCA takedown request procedures that YouTube remove nearly 30,000 unauthorized video files that were uploaded by YouTube users. This furthers my project research into the issue of copyright infringement as it pertains to internet video-sharing service.
Tanzil, Sarah. "YouTube Deletes 30,000 Files After a Copyright Complaint." The New York Times 21 Oct. 2006: Technology.
Intellectual property is taking on new forms in the digital media market. Consumers are exploring their creative license through the use of multimedia service providers in unprecidented ways. This surge of consumer digital media use is also bringing to a head new conflicts between intellectual property rights Creative Commons, and Digital Rights Management. This book explores this phenomenon and the various ways in which major digital media service providers are being effected by this rapidly changing market environment. Overviews of the business performance, legal goings on, and multimedia services of such industry icons as Google, Inc., Metro-Goldwyn-Mayer, Sony BMG, Napster and more are discussed.
In reference to my project, the book looks at precident intellectual property cases and gives insights into how the concepts within the 1976 Copyright Act are applicable to the cases. The author also notes that Google has aside $200 million in escrow to deal with inevitable litigation, lists the various number of litigations involving YouTube, and notes that these cases will set important precedents for future review of copyright law as it pertains to Internet videos (253).
Rimmer, Matthew. Digital Copyright and the Consumer Revolution: Hands Off My Ipod. Massachusetts: Edward Elgar Publishing, Inc., 2007
This piece seemed to lament the fact that the Super Bowl advertisers were not able to monopolize traffic to the ads post-game. It sympathizes with the disappointment these giant companies must be feeling over only getting several hundred thousand hits (instead, presumably, of the several million which they no doubt deserved). Then the article goes on to give the companies tips for how to increase traffic next year, and strategies they should employ if they want fully capitalize on the online branding opportunity. This article testifies to the corporate interests of many media outlets, and can only be of interest if read for what the article is doing, not saying.
For my project, though, this piece is very relevant. It shows the way that commercial interests are sometimes subverted, and how in order to “set things right” (i.e. stop subversion of corporate interests) plans are being made to integrate the very thing that was the cause of subversion. Thus we see how the article calls for the companies to “work with” (i.e. subsume) those aggregator sites that so wickedly usurped their web traffic. This, then, is another example of how commercial interests appropriate more independent forms of media distribution.
This article is an interesting, albeit dated, piece. It brings up some relevant concerns about what happens when community based sites like YouTube are bought up by giant corporations, and does a mediocre job of reporting the ambivalence surrounding this issue. On the other hand, this article lacks a good deal of information that seems critical for understanding exactly what it means that Google has purchased YouTube. For example, it mentions that YouTube is already selling homepage space to advertisers, and this will only increase under Google’s control, but it does not explain what space it is talking about. Are these advertising videos parading as user generated content, or simply banner ads asking you to join Match.com or other such ubiquitous internet advertisements? This would be good information to know since advertising is such a protean, mutable form. Also, the article mentions that YouTube has already made deals with several other large companies (e.g. CBS, NBC, etc.), but does not explain what these deals entail. Do these companies post fake user generated videos that are truly advertisements, or do they simply get to advertise on YouTube in some other manner? So, while this article does touch upon some interesting issues surrounding both the dot.com universe and marketing, it also fails to provide sufficient information to make it a truly useful document.
This article relates to my own project in its focus on corporate conglomeration and marketing. Similar to how Google subsumes a digital community like YouTube, companies like Dorito’s are appropriating the work of independent, non-professional individuals. While this article expresses some fear about the implications of a company like Google buying YouTube, my project will express a good deal more skepticism about what happens when companies like Dorito’s start soliciting user generated content.
While this appears to be a fairly innocuous article about the future of user generated content and the marketing that companies are putting into attracting consumers to create their own video content, there are many insidious implications in this piece. For one, the article mentions how YouTube will soon be providing “branded channels,” which are essentially user generated video channels that are intended to attract consumers by allowing them to create advertisements for a certain company. Companies see this interactive opportunity as a great way to raise “brand loyalty.” Also, the article mentions the six “sample commercials” that CBS created, which are intended to “be as close to authentic” as possible. Authenticity, then, simply becomes something that can be created and produced by companies like CBS. Finally, the article mentions how CBS will be screening every video submitted “for language and appropriateness of content.” The article assures the reader, though, that CBS will “preserve their [the videos] reality and spontaneity.” There are many troubling things about this form of tacit (sort of) censorship, one being that CBS is now the arbiter of what is and is not “appropriate.” Also, the notion that “reality and spontaneity” need to be screened for is blatantly contradictory, but ultimately very telling about this so-called democratizing force known as user generated content. Read this article with skepticism and ire (i.e. critically), though, and it can be very illuminating. For this reason I think it can be useful for my project that deals with exactly what this article addresses (although approaches it from a much different perspective).
tagged Advertising Amateur_Video Copyright_Law Digita Digital Digital_Distribution Digital_Technology Disruptive_Technology Google Hollywood Internet_Culture Marketing Media Movie_Theatres Participatory_Culture User_Generated_Content Video_Rental YouTube by blueher ...on 08-MAR-07
In chapter 8 of Lessig’s book, called “Transformers,” Lessig tells the story of Alex Alben and his creation of a retrospective CD-ROM based on the career of Clint Eastwood. He talks about the trouble the development team went through to get permission from every single actor that had appeared in the that they were going to use. This is just a small part of the chapter, but it helps explain why partly there are numerous mashups and remixes out there without permission: It’s just too hard. Lessig tells a story where Alben’s team tracked down all the actors that had appeared, called them, and then paid them $600. Besides being time consuming, the process seems very cost prohibitive, which explains why there are such a large number of copyright infringing works on sites like YouTube and online.
This is a particularly great article for a number of reasons; however, those reasons will be discussed after a brief discussion of its contents. This piece, by regular contributor Bob Garfield, gives an overview of the purpose of YouTube and what it is, video advertising (in all its forms), and the recent purchase of YouTube by Google, inc.
It talks about, among various other things, the 1.65 billion paid for it in Google stock, the outrageous number of 65,000 (which is the number of videos uploaded everyday onto YouTube), and the reasoning why YouTube has such popular viral videos. The last statement was proved in the article by this quote:
“It’s said that if you put a million monkeys at a million typewriters, eventually you will get the works of William Shakespeare. When you put together a million humans, a million camcorders, and a million computers, what you get is YouTube.”
This article would be superb to cite in a piece on YouTube, like I previously stated, numerous reasons. For starters, the article gives and overview of YouTube for those not formerly acquainted with the site. This is a great article, since it explains to reader how the entire process works. It would also shed some light on the culture of the site and the community that worships it. The article at about halfway through switches gears and begins to talk about the ramifications that YouTube is having in the Advertising industry, the recent decline of mass advertising, and the fall of TV Commercials. This would fit into an essay well because I believe it will certainly add depth to my explanation of the new culture that is arising in our society, the new digital culture, one of Tivo, viral video, and iTunes. All together, this article would be indispensable for any essay on remix culture. It’s a great read, that’s chalk full of good information, quotes, and anecdotes that would definitely spice up any essay about YouTube or other remix sites.
This a great video that can be used as a counter argument for anyone that say’s online video is completely killing companies marketing and advertising strategies. The article chronicles the story of Chevrolet, and their foray into marketing involving online consumer generated works. Thinking they could profit on the recent online explosion, Chevrolet, in a bold move, asked web users to make their own video advertisements for their bestselling SUV, the Tahoe. While Chevrolet supplied the video, and music, users could mix and match them, and add their own captions. While most of the video’s created touted the superiority of the Tahoe, others became sarcastic narrations on global warming, masculinity, and even war in Iraq. Although it was a success overall in the eyes of Chevrolet, it can be argued that because of the appeal of the attack ad’s over the regular advertisements online on sites like YouTube, the negative commercials lampooning the automobile company were much more widely viewed. But, as I said, one could only argue, and not sustain, that this actually supports the fact that ways to advertise to consumers are being lost. Before this claim is made, an individual must realize certain facts.
First, the company, Chevrolet, is known for selling large, generally fuel inefficient vehicles, which have angered some more eco-friendly consumers. Second, one must remember that many other companies have succeeded where Chevrolet has failed. For example, Burger King and Converse, both nationally recognized chains, have previously launched online “mashup” campaigns. The difference, however, was simply the type of users responding to the company’s promotion, and the products of the company itself. In contrast to what happened to Chevrolet’s dealings with “mashups”, Converse was actually so successful with their endeavor, that numerous of the submissions were actually brought onto national television and later went on to receive critical acclaim.
This is a great article for any individual researching the idea of “mashups” and user generated content being used by corporations. It shows what can go right, what go wrong, and what can flat out backfire when users are involved in advertising of a product.
The main purpose of this article would be to introduce the concept of the “mashup” to the reader. Written as a somewhat filler piece for the March 6th’s Newsweek, it’s short, sweet, and to the point. The author intends to write to a slightly older audience, and begins his article with this sentence: “Unless you're a geek, obsessed with DJs or under the age of 35, chances are you've never heard the word ‘mashup.’” This shows that the piece is actually perfect for my aforementioned plan of introducing the concept of “mashups” to anyone not acquainted. A great part of this article is that it actually breaks “mashups” into the three categories that it can be created within: Video, music, and “web apps.” Although the third category of “web apps” is great, (and a big, meaningful part of the internet and the Web 2.0 movement) I don’t believe that it would have much use in an essay about more artistic “mashups” and the new electronic remix culture.
In any case, like previously stated, the article gives great examples of creative “mashups” such as DJ Dangermouse’s "The Grey Album," which took the lyrics from Jay-Z's "The Black Album" and mashed them with the Beatles' "White Album,” a plethora of Brokeback Mountain parodies (which are well within the bounds of fair use), and a “mashup” of Tom Cruise's appearance on "Oprah" where he confessed his love for Katie Holmes, juxtaposed against Oprah’s with her scolding of the author James Frey. As far as articles on internet sensations go, with many examples, and a sufficient definition, this piece is some of the best information an individual can find on the ever changing pop culture craze that is the “mashup.”
This is a great piece because it helps many individuals who do not know much about copyright law to become informed, of what is legal, what isn’t, why there’s so much fuss about YouTube, and what they can do to prevent illegal material from popping up on the site. It begins with “Ron” informing the viewer about a recent suit brought against the site, by Robert Tur, a helicopter cameraman who has taken numerous famous video clips, such as the OJ Simpson chase, and the LAPD police beatings. Mr. Tur feels that YouTube is purposely profiting by the infringement of illegal videos because of advertisements. However, our lawyer friend, Ron, states YouTube is not violating the DMCA because there is no way to see if the loads and loads of copyrighted material is drawing in ad revenue, or if the loads and loads non-copyrighted material is. He even presents what’s good for YouTube, and what’s bad for YouTube. He then states that in his lawyer opinion, that he believes Tur will lose.
In the ten minute video, Ron also mentions many other copyright related subjects, such as Fair use, the Digital Millennium Copyright Act, the Betamax case, Napster, Grokster, and others. This is a great source because it tries to help YouTubers avoid copyright infractions by offering advice, (though not legal advice, as the beginning of the video starts off with “The opinions in this video are the authors alone, and do not constitute legal advice.”) so that they can keep YouTube legal and running. In an essay about remix culture, this piece would serve as a devil’s advocate of sorts, showing that YouTube could possibly still survive without its popular, but illegal videos. In my opinion, however, this is probably not as possible as “Ron” puts it, but it’s a unique view nonetheless.
This article, by online Newsweek contributor Brad Stone, discusses what YouTube represents in the online community. It begins by offering a point, saying “what if YouTube is the Napster of video?” Stone then refutes it by giving specific examples. He states that YouTube is cooperating with copyright holders much more than expected, and is taking down material quickly and but not very efficiently. To combat this problem, YouTube is apparently working with other companies to create a video reconition program that will be able to identify copyrighted material and remove it.
As you might already be thinking, this is bad for remix culture that wants a large audience such as the viewers of YouTube. It not only slows the flow of creative and derivative works dramatically, but forces creators, who want to use YouTube as a medium, to use works that are royalty free, in the public domain, or ask for permission for use (which almost is never granted).
This piece does not only give a good explanation of what YouTube is, and where it has come from, but shed’s light on a possible future for the site. If what Mr. Stone predicts comes to fruition, it would mean a entire medium for copyright infringing works would be gone; whether this is a good, or bad thing for society, is up for interpretation.
To those not acquainted, the Grokster case was the final decision by the U.S. Supreme Court to make most p2p file sharing applications illegal. The court reached this decision after it reviewed an appeal of another appeal that went from a dismissal by the United States District Court for the Central District of California in 2003, to the Ninth Circuit Court of Appeals, where the previous decision was upheld. When relating special court cases to sites online today, an individual may spring to the conclusion that the Sony Corp. v. Universal City Studios case would provide the answer easily. This was the case that prevented VCR manufacturers from having liability and suit brought against them for contributory infringement when users created copies. While the court in the Betamax case famously stated that VCR’s were "capable of substantial noninfringing uses," the decision in the Grokster case stated that even if something has the ability for those noninfringing uses, if no action is taken to prevent infringement of copyright law, it may be guilty of contributory infringement.
How does this relate to the sites and programs used today? Do the YouTubes and BitTorrents have to fear the wrath of possible copyright infringement? The Answer is no, they do not; but, there is a caveat, they must follow the rules of Section 512 of U.S. Copyright law and remove infringing work. This case undoubtedly very significant when approaching and concerning intellectual property theft and property theft in the digital age.
Before we get into the specifics of this article, it’s good to observe who wrote the it: Fred von Lohmann is a senior staff attorney with the now almost infamous group: the EFF or Electronic Frontier Foundation. The EFF is a San Francisco-based nonprofit group who try to protect users, the freedom of expression, creativity and innovation on the internet. While on a less than reputable site than others like Newsweek, Time, or other online journals, this piece is just as, or more so compelling and revealing about the business that is YouTube.
the article itself is split up into 4 sections, the first called: “Why YouTube?” In this section, Von Lohmann explains that the popularity of YouTube has been greater than it’s competitors, citing mostly its ease of use. The second section is “Copyright Issues,” in this section he champions YouTube for being very willing to help abide by copyright, and states that because of this, it is a attractive business partner for advertising. The third section talks about the “Safe Harbor” of section 512 of U.S. copyright law, and how YouTube benefits from it. The last section is aptly named “Problems Ahead?” Like most writers, Von Lohmann is cautious about the future of YouTube and its ability to stay running. He states that while as of right now, while some advertisers are very willing to use the site, others do not because of certain reasons regarding copyright, and advertisement opportunities and effectiveness.
All in all, this is the perfect article for any individual interested in the business behind YouTube.com. Von Lohmann articulately describes the opportunities facing YouTube, potential investors, and advertisers with the new medium. With this piece in mind, anyone can accurately state what YouTube means from an economic view.
Wired’s recent YouTube article, YouTube vs. Boob Tube, does a good job of summarizing the important bits of YouTube culture for those who may have missed it up until this point. It begins as any good discussion of YouTube, by rattling off a large array of videos which are simply to be seen so that you can understand the fundamental concepts underlying YouTube
It continues to assert more of YouTube’s grassroots, consumer-generated flair, slowly beginning to delve into broader sociological concepts (writer Bob Garfield decides to bestow upon YouTube the moniker “monkey vision,” which is a name so outrageously “pompous social magazine writer attempting to coin the next phrase” that it is sure to be forgotten soon.
But beyond that, it does address some key issues with YouTube, such as its future. How can, for instance, YouTube truly keep afloat when all it has is ad revenue and the majority of its hits go through embedded content, not directly off of the site where the ads are?
Regardless, Hollywood types are shaking in their boots, and for good reason. As YouTube takes off, not only do they lose their stranglehold on the media market—as the article points out just a few years ago completely dominated by Hollywood—they lose ad revenue, and to top it all off, many of the videos on YouTube actually infringe upon content that they are creating.
The article, in general, seems to depict a two-pronged future for media. It raises two important questions: can YouTube capitalize on its success, or will it turn out to be a “useless” humanitarian endeavor? The second question is, literally and oddly enough, “will we ever be rid of Regis Philbin?”
Regardless, the future of YouTube still looks promising. We are still in the midst of a consumer culture-driven wave, and as the technology gets cheaper and cheaper, there is no sign of end.
In Chapter 5 of Free Culture, Lawrence Lessig lays out anecdotes and archetypes of all manner of piracy. The duplication of copyrighted CDs and DVDs in foreign markets is touched upon, but one of the main salient points is his defense of Peer-to-Peer file sharing networks, the groundbreaking networks and servers which made Section 512 absolutely necessary and the rulings on which still protect YouTube from harm.
One of Lessig’s major talking points is his attribution of the four archetypal uses of P2P networking: stealing music, sampling music before buying, access to abandonware or other copyrighted content that is no longer available by traditional means, and those who search for content that has no copyright or a Creative Commons license and is meant to be shared.
This is a highly utopian view of both P2P networking and the internet, but at the very least interesting to consider. Lessig goes on to discuss drops in CD sales and later Jack Valenti’s ridiculous claims about VCRs as “tapeworms,” just waiting to drive the industry down. If anything, the VCR and file-sharing networks both paved the way for the kind of content generation and also server networks that my final project will use and draw attention to.
This section of U.S. Copyright law sets guidelines and restrictions for internet service providers and internet services which use their own servers to host user documents. It allows for an internet service to continue functioning without fear of reprisal from copyright property owners so long as the operators of the service are not participating in the infringement and do not know of the infringing material’s existence on their servers.
This governs server liability, stating “a service provider shall not be liable to any person for any claim based on the service provider's good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.”
It is this kind of exemption that keeps sites like YouTube and BitTorrent search sites up and functional. If the copyright owner actively complains, the server simply takes down the files and no legal issue is raised (meanwhile the copyrighted content likely pops up again within a matter of days).
This section of US Copyright law outlines violations of copyright-managed systems, such as bypassing digital rights management and producing a copy of a video in another format. This makes it illegal for consumers to bypass encryption that restricts content, for instance, to one device for purposes of moving the same content to another. The law also includes information on the Librarian of Congress’ selection of a class of bypassable works, exemption for educational institutions, and what construes technological violation of copyright encryption.
Section 1201 also states that no outstanding violations of this section will hinder a defendant’s fair use argument.
This section of US Copyright law is particularly salient as in order to create my project, I will be bypassing both DVD encryption codes and any DRM embedded into the music used for the piece.
These are both clear violations of Section 1201. However, were my project ever to come under copyright scrutiny, I would hope to find protection under this violation being carried out within an academic institution, for purposes of parody, and creating a transformative video which falls neatly under fair use exemption.
This is also important because for the vast majority of videos on YouTube that contain copyrighted content owned by major corporations, that content has been captured from a source which implemented digital rights management, and thus the uploaders have infringed upon Section 1201.
Thesis: This project explores the increasingly important relation of digital and remix/convergence culture to copyright law and copyright holders, specifically with regards to how video and sound properties are handled in the highly open market of the internet. As a creative submission, I will create a mash-up video parody featuring copyrighted content from Apple Corps., Vivendi Universal, and Buena Vista Pictures. My supporting paper will detail the copyright violations that were necessary for the creation of the work, as well as discussion of whether and why the work should be seen as "fair use" and the ways in which our current cultural paradigm calls for a system within which creations in the same class of works can be made without the violation of the Digital Millennium Copyright Act.
Arguments:(1) If laws are in place which protect works which are transformative in nature or fall under other fair use or parody guidelines, a system should be established by which consumers can legally transform their media without having to violate the DMCA by bypassing digital rights management encryption. (2) Our culture is in a transitional state, as technology is making the process of parody and other fair uses increasingly democratic. (3) The creative project itself will be a parody of Hollywood tropes and practices, which are becoming increasingly less dominant in the new age of user-generated content. Fittingly, the final project will be posted on media and netroots darling YouTube to make the commentary complete.
This press release from YouTube briefly details their partnership with Universal Music Group (UMG), subsidiary of Vivendi Universal. In this groundbreaking strategic partnership, UMG agrees to make music videos whose rights they own viewable on YouTube. It also allows for YouTube users to utilize music from UMG’s extensive catalogs in their videos. In turn, YouTube agrees to remove from their site any content owned by UMG which they choose not to make available, and UMG and its artists will be compensated by YouTube for their properties being viewed on the site.
The document makes mention of the nature of the partnership: that is, a way for UMG to tap into the vast resource internet traffic, a way to assure that YouTube remains devoted to protecting their property, and lastly an embrace of contemporary convergence culture and the new consumer/prosumer drive towards user-generated content.
This is an interesting deal, especially considering the rampant speculation of YouTube running into problems with UMG just a month before this announcement and how, in the midst of the YouTube deal, UMG sued two other video sharing networks.
I reference this announcement because it, as well as YouTube’s agreement with Warner Music Group (which preceded this partnership) are primary evidence of a growing trend towards adoption of user-generated content models, and the willingness of media giants to begin the slow process of loosing content restrictions without direct payment by the consumer.
I reference specifically the Universal Music Group rather than the earlier Warner announcement because segments from my project will include property (video) that is owned by Vivendi Universal. While this announcement does not in any way justify the posting of my project on YouTube as a legal action, the existence of a link between the two companies is of note, and hopefully a sign that should property agreements expand, the video included in my project will one day be YouTube-licensed (keeping in mind that this is not likely, as the project will contain copyrighted material from additional companies.
This is a copy of the lawsuit Universal filed against MySpace on November 17, 2006, in the United States District Court of Central California. In the suit, Universal claims that MySpace is guilty of copyright infringement. Universal claims that the songs and music videos shown on MySpace are done so illegally and without permission from copyright holders. Universal uses Jay-Z as an example in their case against MySpace, saying that songs from his new CD, "Kingdom Come", are available on MySpace even though, at the time the suit was filed, the record had not been released. Universal says that MySpace is well aware of the copyright laws that it is breaking and continues to support the "user-stolen"content distributed on the site. They also say that MySpace knows that they don't have a liscense from the copyright holders of the songs and videos it distributes. The proof, says Universal, lies in the agreement each MySpace user makes with the site that gives MySpace control over what can be done with the content. Universal says that MySpace knows that these are not the real copyright holders, and yet continues to show infringing content without permission.
This case is extremely relevant to the YouTube copyright discussion. First off, it could convince MySpace and other similar sites to follow YouTube's lead and strike revenue sharing deals with major studios. The YouTube business model would then be seen as a blue print for similar companies, and this in turn would help shield YouTube and other sites from future lawsuits. However, this case could end up hurting YouTube. Universal claims that since MySpace edits and posts much of the content on the site, they are knowingly infringing upon the copyrights of the videos and songs available on their site. Although YouTube's users do much of the posting and editing, YouTube itself still edits user content. If the courts buy Universal's arguments, YouTube could be in grave danger of future lawsuits.
This article from the New York Times describes in detail the legal issues that Google deals with on a regular basis. Katie Hafner, who wrote the article, notes that any company that is large, successful, and has deep pockets, all qualities of the search engine giant, will attract lawsuits. Yet she says that Google "invites" lawsuits because of the company's "rush to create innovative new services. Professor Jonathan Zittrain of Oxford University is quoted in this article as saying that Google's strategy seems to be "just do it, and consult the lawyers as you go". He sees this as an offshoot of the late 90's internet boom culture which promoted new ideas and technology at the expense of possible legal trouble.
With Google's recent purchase of YouTube, many believe that the company is "exposing itself to a new spate of lawsuits". Hafner points out the fact that much of the content on YouTube is copyrighted material just copied and illegally posted, as well as the lawsuit filed against YouTube by Robert Tur, which Google will now have to deal with. However, Google has plenty of experience in copyright fights, and seems ready for the challenge.
Hafner spends the rest of the article detailing the reason's behind Google's aggressive policies toward fighting litigation and some of the most well known copyright and trademark cases involving YouTube. She first notes that Google now has a team of over 100 lawyers, stationed both overseas and in the United States, many of which are experts on intellectual property law. This team works tirelessly to fight nearly every single lawsuit filed against Google. They do this because, one, Google wants to set a good legal foundation for itself, and winning cases certainly does this. Also, any lawsuit that gets to the pre-trial fact finding phase, writes Hafner, would "pose the danger of revealing too much about Google's propriety technology"
The rest of the article deals with Hafner describing the Geico case against Google, in which the courts ruled in Google's favor, and the lawsuits brought up by the French and Belgian press. The Belgian case is extremely relevant to copyright law, with Google claiming that headlines are not copyrightable, while the Belgian media thinks otherwise. A Belgian court ruled in favor of the media outlet in September, yet it remains to be seen whether or not this ruling will have an effect on Google in the United States.
This article is important in the YouTube discussion because it points out one of Google's great advantages when dealing with copyright issues- Google has tons of experience in this area. Google's executives and lawyers both know what to expect in the upcoming lawsuits, and they firmly believe that they have a solid defense. Google would not have purchased YouTube if they had not been confident in the company's legality.
Stephen Speicher discusses YouTube's place in the fair use discussion, and how the debate over YouTube could help and answer the "age-old question: What is fair use?". He first comments on YouTube's amazing rise to stardom, becoming the number one internet video service just a year after its conception. Speicher explains that YouTube's success stems mostly from its ability to allow users to post videos and view them. He also points out that while much of YouTube's traffic comes from views of homemade, legal, amateur content, a large bulk of the videos posted on the site are copyright infringers and, therefore, illegal.
While many of these videos containing copyrighted content are direct copies and obviously illegal, many of the videos show short news clips from cable television, sitcom or clips of sporting events and other public gatherings. These "tightly-edited clips", argues Speicher, can be seen as reporting or educational, and therefore within the limits of fair use. He uses the example of someone blogging about the officiating in the NBA playoffs, saying that while it would be possible to describe each play in detail and then give the thumbs up or down on the refs call, it would be much more practical just to show the clip of the play itself to illustrate your point. He also mentions the fact that YouTube is positioning itself to be at the heart of this debate by "distancing themselves" from complete works (The ten minute limit on clips is a good example of this).
This fair use argument, while it isn't YouTube's major defense mechanism (that would be the Safe Harbor provision in the DMCA), can help bolster the case for YouTube as a legitimate company. If YouTube can convince the courts that these clips are fair use, it would eliminate a significant portion of the clips now considered illegal on the site. With more legal videos, YouTube can make the Sony argument, saying that their company has substantial non-infringing uses. This precedent has been in place for twenty years and would put YouTube on very solid legal ground.
This document was posted on Mark Cuban's website blogmaverick.com. Cuban claims that this is the actual filing of the case Tur v. YouTube, and judging from the legal jargon and very deliberate format, there seems to be little reason to deny that this is the actual filing.
The document states that on December 4, 2006, the case Robert Tur v. YouTube will be heard in United States District Court of Central California. The introduction states that "there can be no doubt that serious and repetitive infringements of Tur's copyrighted works are displayed...on YouTube on a daily basis." It also states that YouTube's main defense is the Safe Harbor Act in the DMCA, which they say protects them because they immediately remove copyrighted content at the owner's request. The summary of Tur's claim states that YouTube does not qualify for the Safe Harbor provision because they make money "in the form of banner advertising directly attributable to the infringing video clips." The article then goes on to list the details of the case, which basically state that five clips copyrighted by Tur are being shown on YouTube illegally. It also states that Tur is seeking roughly $150 million in damages, or $150,000 for each illegal viewing of his clips.
The decision in this case will be absolutely essential to the future of YouTube as a legitimate business. While YouTube has helped solve many of their copyright issues with big name studios through recent revenue sharing agreements, a decision favoring Tur in this case would open the door to more lawsuits from small copyright owners. This case will also test the legitimacy of YouTube's safe harbor defense. Without the safe harbor provision, YouTube is an illegal company. If this court's decision and later decisions eventually change the validity of that provision, or convinve Congress to do so, YouTube may be completely out of luck. However, a win in this case would put YouTube on solid legal footing behind this Safe Harbor Defense.
Peter Fader of Wharton called the agreement between Warner Studios and YouTube, which allows Warner music videos to be played on YouTube in return for a portion of the ad revenue, the "single biggest business development deal in the history of digital media". Internet mogul and Dallas Mavericks owner Mark Cuban, on the other hand, believes that YouTube will ultimately have the same fate as Napster and be crushed by copyright lawsuits. The real answer may lie somewhere in the middle.
The article mediates a debate between naysayers, such as Cuban, and optimists, like Fader, over what the fate of YouTube will be. Cuban states that YouTube is "in the same boat as Napster". He argues that although YouTube may do a lot of good things for copyright holders, such as the promotional benefits, it will not be enough to make every single copyright holder happy. Cuban notes that it would only take one successful lawsuit against YouTube to bankrupt the company. Fader, on the other hand, suggests that the Warner deal could lay the groundwork for future deals between YouTube and other major Hollywood studios. His prediction seems to be right on the money. Since this article was published, YouTube has made agreements with CBS, the NHL, NBC, and most notably, Universal Studios, which had previously been YouTube's most outspoken critic.
Also discussed is the significance of the agreement between Warner and YouTube. Fader notes that this agreement represents a sort of paradign shift, mentioning that Warner took a completely opposite stance when it was fighting Napster in court. Also, the agreement sets a trend for other companies to follow suit. This prediction by Fader was also proven true with the new YouTube agreements mentioned earlier. Fader also predicts that these deals will allow YouTube to "call the shots" in the video industry, much the same way Google runs the search industry.
The debate in this article is the fundamental issue regarding YouTube and its legitimacy. It is important for YouTube to secure protection from copyright lawsuits, and they seem to be doing that with recent agreements and their willingness to takedown copyrighted material. However, Cuban's view does hold true that one lawsuit could cripple the company, and that lawsuit could be Tur v. YouTube. The ruling of this case and others like it may ultimately determine YouTube's future.
Michael Liedtke writes in this article about the recent lawsuit brought against Google involving Google's online video service and whether or not the lawsuit is a sign of more copyright issues to come for Google's newest addition, YouTube. He writes that content owners may only be biding their time until the Google acquisition of YouTube is finalized. At that point, a number of lawsuits may be filed against YouTube by copyright holders.
Google launched its online video service this January. Since then, Liedtke writes, they have been desperately trying to catch up to YouTube, created a year earlier by two Pay Pal employees in California. However, Google has "abandoned its attempts to catch YouTube", and instead just purchased the company for a cool $1.65 billion. The issue with the acquisition, Liedtke explains, is that copyright holders can now sue YouTube with expectations of a large payout, now that they are backed by the immense capital possessed by Google. Liedtke notes that before the deal with Google, YouTube "had been subsisting on $11.5 million in venture capital". Google itself has $10.4 billion- in cash. Google itself has acknowledged the fact that it could face more copyright lawsuits because of YouTube.
Liedtke also talks about the widely circulated internet rumor which said that Google had set aside $500 million in case copyright issues came up after the purchase of YouTube. The number was later confirmed to be $200 million by Google representatives. Eric Schmidt, Google's CEO, continues to remain confident amidst the fears of lawsuits. He said that YouTube has "been on this path" referring to copyright issues, and that together they could solve these issues "more quickly".
Investors also seem to be unfazed by copyright concerns over YouTube. Liedtke points to the fact that Google has a lot of experience in copyright cases and has yet to been dealt a serious blow. Google's stock has risen nearly 15% since the purchase of YouTube.
Tim Wu in this Slate article describes in detail the differences between YouTube and Napster and why he believes that YouTube has very solid legal footing. Wu simply says the YouTube has a safe harbor provision in the DMCA protecting them, while He also describes the "Bell lobbyists" and how their efforts set the foundation for YouTube's seemingly successful business model.
The Bell lobbyists, Wu writes, fought one of the greatest copyright struggles in history when it took on Hollywood over the liability of internet companies for copyright infringement. Wu describes the clash of these two entities as "Frazier meeting Foreman", saying that the unstoppable force that was the Hollywood lobbying team finally met an immovable object in the Bell lobbyists. Hollywood, on one side, wanted internet sites to be responsible for all content on their site, even if they were unaware of the infringing content. The Bell lobbyists insisted that this was ludacris and fought against Hollywood's lobbyists with all their political might. A stalemate insued, so a compromise was reached. Wu writes that this compromise would later become Title II of the DMCA, which states that companies are protected by a "notice and takedown" system. This means that all a site has to do to comply with copyright laws is take down infringing material at the request of the copyright holders. Therefore, YouTube only needs to quickly takedown any material after notified to avoid legal issues.
Wu does mention that this provision is not 100% "air-tight" noting that if YouTube knows there is infringing material on its site and fails to act, it may be liable in court for the infringement. Wu then describes the difference between Napster and YouTube, saying that if the Internet were a red-light district, Napster would be the "pimp" and YouTube the "hotel". He says that while Napster, like a pimp, is a means of getting illegal things and nothing else, YouTube is like the hotel in that they only "provides the space for people to do things, legal or not".
Brian P. Wilkner discusses in this article the effects of the Sony v. Universal and MGM v. Grokster on the newest batch of cases that will "pit mainstream, consumer-participation-oriented companies against copyright owners". The article gives background information on both the Sony and Grokster cases and talks about the contributory liability doctrine, and how the Sony decision limited the power of this doctrine by stating that Sony's VCR had significant non-infringing uses. On the other hand, it noted the Napster and Grokster cases which found each music file sharing company guilty of copyright infringement, and therefore were illegal. Napster's fatal flaw, writes Wilkner, was the fact that they had a centralized indexing system that gave the creators of Napster too much knowledge of what was actually being shared on their website. Grokster attempted to circumvent this problem by creating a decentralized index which "deprived their creators of any knowledge of infringing activity". The Supreme Court ultimately ruled against them, saying that companies that distribute a device with clear intentions of promoting copyright infringement were illegal, and that Grokster's claim that they were unable to stop copyright infringement from taking place demonstrated an "unlawful objective". One of the interesting tidbits about the Grokster case was that the court did not rule on the limits of the Sony decision, as many court observers thought they would.
Wilkner then goes on to talk about "inverse Grokster scenarios", which he says will "pit content owners against legitimate organizations seeking to capitalize on the demand for interactivity". Companies like Google, MySpace, and YouTube, he states, will not make statements or take actions to promote copyright infringement, but will maintain day-to-day operations with the knowledge that some copyright infringing content is being viewed or placed on their sites. This is in direct contrast with Grokster, which claimed ignorance by stating it was unaware of any infringement taking place on its site. The article ends with Wilkner proposing a "test" of the inverse Grokster dilemma in which the courts will have to decide whether the public benefit from these sites outweighs the property rights of copyright holders.
Amanda Bronstad in this article writes about the differences between the copyright infringement cases that ultimately doomed music file sharing sites like Napster and Grokster and the current batch of cases involving video sharing sites like YouTube. On one side of the argument, video sharing sites say that a major percentage of their content is perfectly legitimate and legal. Also, these sites, especially YouTube, point out that they remove content considered to be copyright infringing immediately after they are notified by the copyright holder. This did not happen with music file sharing sites. However, lawyers for Hollywood's major studios say that their case is bolstered by the fact that they now have a precedent in MGM v. Grokster. They argue that web sites know they make money off of this infringing material, and therefore are liable for induced infringement. They also say that video sharing sites may be considered direct infringers because of the role these sites take in editing user content.
Bronstad also notes that while the recent agreements between YouTube and major studios such as Universal, Warner, and CBS does help legitimize the site, the agreements aren't necessarily "suit proof". She says that many experts in the field see a major gray area that could be exploited by an ambitious company or law firm. She says that the debate will ultimately come down to the DMCA's "safe harbor provision", and whether or not these video sites have put in place and enforced rules to protect themselves from future legal issues. She says that the strongest safe harbor these companies have is the ability to remove copyright infringing material from their sites. If sites continue to consistently remove copyright infringing content, as YouTube has done over the last few months, then these companies will have a strong legal foundation for their business models.
Cox describes the deal struck between Warner and YouTube. Warner agreed to post its entire catalog of music videos on the site, while YouTube agreed to share any ad revenues gained from these videos, as well as the "65,000 daily submissions which incorporate Warner music." The CEO of Warner is quoted in this article as saying basically that technology is changing and that Warner needs to adapt to these changes. The article also brings up some of YouTube's arguments on why their business model is legal, while Napster's was not. YouTube's founders argue that, unlike Napster, the site knows exactly what material is being posted and that they are willing to take down any material that infringes upon copyright. The article also notes that YouTube is a great place to publicize videos, TV shows, songs, and other forms of entertainment. Cox points to the example of "Lazy Sunday", a Saturday Night Live skit that became immensely popular because of YouTube and led to a resurgence in Saturday Night Live's ratings.
One of the interesting things about this article is that, although it was only written about two months ago, it is already very outdated. It talks about the problems companies encounter when suing YouTube, noting that the company doesn't really have millions in capital to sue for. That is no longer the case after Google's $1.6 billion aquisition of YouTube. It also quotes a Universal representative as saying that YouTube infringes on copyright and is an illegal site. This is no longer Universal's position, being that they, like Warner, recently reached a revenue sharing agreement with YouTube. This article demonstrates how quickly YouTube is moving in its attempts to be seen as a legitimate, legal business.
Riddle me this: what do you get when you combine a nifty little piece of Flash software, some backend mojo, an army of cellphone-toting teens, and one "Lazy Sunday" clip? The answer is, of course, the largest online video streaming service on the planet, YouTube.
Ironically enough, however, it's YouTube's philosophy of small, digestible content and their willingness to avoid copyright issues that has positioned them to answer the age-old question of “What is fair use?”