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.
In this case, Corbis, the owner of copyrighted photographs, sued Amazon.com for copyright infringement after several of Corbis’ photographs, without its consent, appeared on third party vendor platforms hosted by Amazon.com. Amazon.com’s primary defense was that it is protected from liability for the alleged copyright infringement under the Digital Millennium Copyright Act (“DMCA”). Thus, the Corbis case is pertinent to my analysis in that many of the issues facing YouTube in meeting the requirements of the DMCA were addressed in this case.
The Corbis court addressed the DMCA’s requirements that the service provider 1) not have actual or apparent knowledge of the infringing activity and 2) not have the ability to control the content of users’ postings. The Corbis court ruled that actual knowledge requires that the copyright holder provide evidence that it notified the service provider of the specific infringing material. The court also found that Congress contemplated that apparent knowledge of infringing activity requires that the service provider turn a blind eye to red flags of “pirate sites.” For purposes of my paper, the extent to which user sites are obviously infringing will be critical to the application of the knowledge test.
The Corbis court also amplified the DMCA’s right and ability to control test. It explained that the ability to control the infringing activity cannot simply mean the ability of the service provider to remove or block access to materials posted on its website or stored in its system. According to the court, there must be some level of active involvement with content decisions. In the case of YouTube, its screening techniques and its technology for identifying and removing infringing videos will be relevant to determine whether YouTube runs afoul of this requirement.
Whether or not YouTube satisfies the requirements of the DMCA, including its level of knowledge and the ability to control infringing activity, will be fact dependent. However, the court’s analysis in Corbis and its discussion of the DMCA’s legislative history will be helpful in applying the facts of the YouTube litigation to the law.