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.
The article by Mr. Cloak discusses the evolution of online copyright cases in the pre-DMCA era. Before the DMCA, there was very little protection from liability for online user-generated services. The first case to test website liability in copyright infringement was Playboy Enterprises, Inc. v. Frena. Frena owned an online message board service that allowed its users to post messages and pictures to share with others. One user uploaded over 100 images copyrighted by Playboy. Playboy consequently sued Frena for copyright infringement, despite that fact that Frena had not actually uploaded the pictures himself. The court ruled that Frena was liable for the infringement, failing to note that Frena simply ran a service allowing others to upload images. The case of Religious Technology Center v. Netcom On-line Communications Services advanced the Frena ruling when the Church of Scientology sued Netcom for allowing unpublished Scientology writings to be posted on its services. The court judged that Netcom was not directly liable for this infringement because it had not directly facilitated the infringement. Rather, its software had automatically uploaded the infringing material without the knowledge of the operators. While Netcom was not liable for direct infringement, the court noted that it might be liable for another type of infringement. A website could be liable for Vicarious Liability if it receives direct financial benefit from the infringing material and has the ability to control infringement. Similarly, it could be guilty of Contributory Infringement if it has subjective knowledge of the infringement and substantially participates in the infringement.
The aforementioned types of liability have been mentioned in multiple copyright cases, such as the Napster case. With the advent of the DMCA and the Safe Harbor law, a service like Youtube is increasingly safe from direct liability. Youtube, however, could be held Vicariously Liable: it receives ad revenue in proportion to the number of users; if the number of copyrighted videos increases, its ad revenue will increase. Youtube has also developed filtering software, giving it the ability to control copyrighted material. For this reason, it could still theoretically be vicariously liable. Youtube could also be liable for Contributory Infringement because it has knowledge of infringement on its site (evident from the numerous takedown notices it receives). However, by demonstrating sufficient non-infringing uses of its services, like Betamax, it can escape Contributory Liability by being labeled a “staple article of commerce.” As Mr. Cloak states, “subjecting YouTube to liability from copyright owners could destroy a major facilitator of American creativity.” At the same time, authors have the right to control their works. Thus, the DMCA establishes a perfect medium by protecting online services from direct liability for allowing their users to upload anything, while also allowing copyright owners to request their work be removed if they wish. Subjecting Youtube to liability for simply allowing creativity to thrive on its servers should not be allowed, unless Youtube is proven to be guilt via vicarious or contributory means.