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.

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.