The YouTube Question

By now, everyone has heard about the One Billion dollar copyright infringement lawsuit Viacom filed against YouTube and its owner, Google. The lawsuit stems from the fact that clips from a number of Viacom’s programs are regularly appearing on the YouTube website.

YouTube allows its users to post video clips onto the YouTube website, and categorize the clip by providing terms which enable the clip to be displayed when a viewer conducts a search. While some users post videos clips they themselves create, other users are posting clips from television programs and motion pictures, including programs owned by Viacom such as Sponge Bob Square Pants, The Daily Show with Jon Stewart, The Colbert Report, South Park, and MTV Unplugged.

One of Viacom’s chief complaints is that YouTube has not instituted filtering technologies to prevent the uploading of clips from Viacom’s programs despite promises from its executives. Viacom also complains that because YouTube users are able to re-post removed clips almost as soon as they come down. This and other factors cause Viacom to lament that “no matter how much a copyright owner expends to protect their rights, there will always be a vast collection of infringing videos available on YouTube to draw users to its site.”

As an attorney who regularly represents content owners, I understand Viacom’s concerns. Viacom believes that if clips from one or more of its programs are available to users for free on YouTube, this may lessen the demand for those programs on either Apple’s iTunes or on one of Viacom’s own sites. Is YouTube taking advantage of some loopholes in the now 9 year old Digital Millennium Copyright Act (“DMCA”), or is the DMCA doing what its supposed to do and content owners are trying to run rough shot over what may be fair use.

Under the DMCA, a “Service Provider” may be entitled to immunity from claims of copyright infringement in four areas: 1) transitory communications; 2) system caching; 3) storage of information on systems or networks at direction of users; and 4) information location tools. While each area would appear to have some application to YouTube’s business, the information storage category is likely to be of primary focus if Viacom’s suit progresses.

Under the information storage safe harbor, the Service Provider:

  1. Must not have actual knowledge that the material is infringing;
  2. Must not aware of facts or circumstances in which they would be aware of that the material is an infringement;
  3. Upon becoming aware of the existence of such infringement material, acts promptly to remove or disable access to the infringing material.

In addition, in order to be entitled to copyright infringement immunity under this provision, the Service Provider must not receive a financial benefit directly attributable to the infringing material where it has the right and ability to control it. Additionally, the Service Provider must, upon notification of a claim of infringement, quickly removes or disables access to the infringing material.

The areas that will receive the most attention in determining whether or not YouTube should be entitled to the protections of this safe harbor is whether YouTube receives a financial benefit directly attributable to the infringing material, and YouTube’s knowledge that the material is, in fact, infringing.

YouTube sells advertising on its site, and reaps a financial benefit from high user traffic. However, as far as this writer is aware, YouTube does not include advertisements either before, after or within the video clips themselves. Rather, YouTube runs banner ads where YouTube gets paid based on the number of times any particular ad is viewed. Under Ninth Circuit case law this may be enough to establish a “financial interest.” (See, A&M Records, Inc. v. Napster, Inc; Fonovisa, Inc. v. Cherry Auctions, Inc. See also Perfect 10 v. Google, Inc.)

Does YouTube know that material on its system is infringing. Viacom claims that YouTube does. In an Op-ed piece in the Washington Post, Viacom’s general counsel claims that YouTube users use the site to view infringing material and “[i]f the public knows what’s there, then YouTube’s management surely does.” Other critics claim that YouTube must be aware that infringing material is on its system and this generally knowledge should strip it of safe harbor protection. While it would be safe to presume that YouTube knows that there is some content on its system which infringes the copyright held by a third party. However, its almost certain that YouTube does not know which of each piece of content stored on its system is infringing and which is not.

Viacom and others insist that YouTube could install filtering software that would flag files which contain certain keywords tending to be associated with clips from television shows such as “The Daily Show” or “The Colbert Report.” However, if YouTube did install such filters, it would then have to manually review each file to determine whether or not fair use or some other applicable exemption would be applicable. Not to mention the resources YouTube would have to devote to this, what if YouTube’s definition of fair use deviated from that of its users. Why should the fight about fair use be between the user and YouTube.

As a result of YouTube and other similar companies, content owners are required to be extra vigilant in policing their rights. That vigilance comes with a price tag. However, at the end of the day, content owners can have infringing content removed from YouTube very quickly. (Based on personally experience, YouTube is by far the quickest to respond to a take down notice.)

The DMCA is performing as its supposed to do. Content owners have the ability to initiate the removal of allegedly infringing content, the posting party has the ability prevent its removal by claiming fair use or some other exception, and if the content owner still feels strongly about removing the content, the DMCA allows the content owner to take the poster to court. It may be somewhat expensive for a content owner to patrol sites like YouTube and send out take down notices, but if the burden were on YouTube, posts like the pro Barack Obama clip incorporating Apple’s 1984 Super Bowl television ad might not have made it up. (Oor the various clips responding in kind)

Protecting the public’s right to use a third party’s material for criticism or comment are the hallmarks of fair use, and must be protected. The question the Viacom litigation poses is who will bear the price associated with protecting this right.