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 is the text for the Visual Artists Rights Act of 1990. The first section defines a work of visual art as "a painting, drawing, print, or sculpture" or "a still photographic image produced for exhibition purposes only" The work has to have no more than 200 copies, and each has to be signed and consecutively numbered by the author. This act protects the works of authors in the visual artistic field, and allows the authors to take credit for their work, and also to remove their name from any altered version of that work. The author can also prevent intentional changes of their work, especially if it would hurt the author's reputation. This also enumerates certain exceptions and also the duration of the rights, which is the life of the author. The act also has a transfer and waiver section that lists that rights cannot be transferred, but the author can waive them. In addition, if the work is part of the structure of a building or something of the sort, then the owner of the building needs to get permission from the author in order to remove his or her work. However, if the moving of the work will not ruin or destroy it at all, then it is permitted.
This act is the basis for subsequent cases and claims of copyright for visual works. The Visual Artists Rights Act of 1990 (VARA) adds more specifics to the United States Copyright Act of 1976. The extension to include visual artists works is an example of how changing times need new legislation. Under the original act, visual works are somewhat protected, but VARA gives more rights to the authors. Under VARA, the author can still control what is done with and to his or her work, even if he or she is not the owner of the physical piece. This is a major step forward in the United States copyright realm, because this is the first time that moral rights are given to authors; although, in Europe author’s already had moral rights.