Kunz,P . "Whose Tube? - A Contributory Copyright Infringement Analysis of the Pending Lawsuit, Robert Tur v. Youtube Inc." DePaul University Journal of Art and Entertainment Law
Robert Tur is a Los Angeles photographer famous for his coverage of the infamous car chase of O.J. Simpson in 1994. His lawsuit against Youtube marks the first high-profile case in which Youtube is accused of inducing infringement. His main argument stems from the case of MGM Studios v. Grokster, in which the court held that one who “distributes a device with the object of promoting its use to infringe copyright is liable.” Youtube’s immediate response to this complaint included a defense that it was protected by the DMCA, which protects ISPs. Tur claims that Youtube is liable for Contributory Infringement due to its inducing of infringement by users. Mr. Kunz discusses that Youtube qualifies as an ISP based on the court’s decision in Hendricson v. eBay, in which it ruled that operators of an Internet website can qualify as an ISP. While Kunz provides analysis of Youtube’s lack of liability under the Safe Harbor law, I plan to use his comparison of Youtube to other previous cases more extensively in my paper.
In terms of the Sony video tape recorder, Youtube is similar in that it has substantial non-infringing uses: it actively encourages home movies; it has fostered the creation of original web series such as Loneygirl15; and it has recently signed deals with major content providers like Sony BMG. In the Napster case, the court held that services could be liable if they have direct knowledge of specific examples of infringement. When copyright holders informed Napster of infringing works, Napster simply penalized the offending users, without removing the offending files. They were thus knowledgeable of directly infringing files available. Youtube, on the other hand, immediately removes offending files once they are reported and also uses Fingerprinting technology to prevent similar files from being uploaded. Napster officials also purposefully remained ignorant about user accounts because they knew users were pirating music, whereas Youtube officials encourage content creation over pirating. According to the Grokster ruling, services can be liable if they have the intention of promoting, or inducing, infringement. While Grokster distributed software with the intention of allowing users to illegally download and retain the pirated material, Youtube requires users to watch material on its services. Thus, it does not foster piracy because it does not permit users to download videos. The court also found Grokster liable because it did not create filtering material to remove copyrighted works, while Youtube has actively worked on such software.
The information in this article will be extremely useful as I argue that ISPs like Youtube are not liable for copyright infringement that occurs via their services. The author of this article does a successful job of linking Youtube’s case to other precedents that have been ruled by courts. While this case is specifically relating to the Tur v. Youtube lawsuit, the Viacom v. Youtube lawsuit is very similar. Youtube brilliantly distinguishes itself from previous infringing services and thus strengthens its position against Tur and Viacom.