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Thursday, November 15, 2007

YouTube's Apology

by: Oscar A. Lara, Associate Editor, MTTLR

Google and YouTube are currently facing a class action lawsuit for copyright infringement. Among the parties claiming infringement are the Football Association Premier League, England’s most popular soccer league, and Viacom, which owns MTV and Comedy Central. The result of this lawsuit could change the way the safe harbor provisions of the Digital Millennium Copyright Act (DMCA) are examined.1 In this case, a liberal reading of the statute would benefit the public.

The heart of the claim is that YouTube infringes the copyrighted works uploaded by altering the posted videos.2 It is also alleged that YouTube secondarily infringes these works by promoting these infringing uses, receiving advertising revenue through these infringements, and by not implementing reasonable measures that could eliminate or reduce the uploading of infringing works.3 Google and YouTube respond that they do not infringe because they remove the copyrighted works as soon as they are notified.4 They also claim that they fall within the safe harbor provisions of the DMCA.5

Usually, when confronted with similar lawsuits, Google has been able to rely on the safe harbor provisions of the DMCA.6 However, these provisions may not be able to save Google in this case. Considering that Google does profit from people using YouTube and is aware that people could abuse its server to infringe others' works, Google may not be able to meet the knowledge requirements set forth under the safe harbor provisions of the DMCA.7

This is assuming that the safe harbor provisions are examined under a strict reading. The court, however, should examine these provisions more loosely. While it is true that Google does profit from YouTube, it is not necessarily from the number of infringed videos uploaded. Aside from the millions of people who visit YouTube,8 Google profits from YouTube from the advertisements present on its main home page as well as those present in the search results.9

In addition, while Google and YouTube may be aware of the possibility of its users infringing, there is very little they can do aside from what they do now. YouTube would need to check every video that is uploaded, and make sure that it is not infringing on anybody’s copyright. This is difficult in multiple levels. First, YouTube would need to identify whether the work is protected by copyright. Since neither notice10 nor registration11 is required for copyright protection, attempting to discover whether a video a particular video is infringing can be a difficult and tedious task. Also, if YouTube does encounter a video that contains parts of a copyrightable work, the video may still fall under the fair use doctrine.12 YouTube would then need to decide whether the work qualifies as fair use. However, this would require YouTube employees to be judges of what constitutes fair use, or to hire intellectual property experts to do it for them. In either case there is still the possibility of YouTube getting it wrong. Since this is something that should not expected from Google, YouTube, or any service provider in general, they should not be seen to violate the knowledge requirement.

Google and YouTube also remove unauthorized videos quickly after they are notified by the copyright holders. YouTube only asks that the copyright owner send in the proper notification requirements listed in the DMCA.13

The goal of Section 512 is to limit the liability that service providers would otherwise incur under regular conditions, because of the internet’s nature.14 Much of what is uploaded on YouTube is out of their control. It would be asking too much of Google and YouTube to take the certain measures listed above. Even the measures they have recently taken to reduce piracy and infringement raise questions of whether they violate the fair use doctrine.15 Finding Google and YouTube liable would be a great harm to the public. Google and YouTube could potentially resort to charging for uploading videos in order to compensate for the liability costs. Or, it could lead Google to shut down YouTube. In either case, many people would lose a method of sharing their ideas and creativity to the public. This does not promote "Progress" as the Intellectual Property Clause of the Constitution states.16 If anything, it might be promoting regress.

1  Section 512 of the DMCA contains the safe harbor provisions that protect service providers from copyright infringement liability. Section 512(a) deals with transmitting, routing, or providing connections for material through a system or network controlled by the service provider. 17 U.S.C.A § 512(a) (1998). Section 512(b) deals with intermediate and temporary storage of material on a controlled network operated by the service provider. 17 U.S.C.A § 512(b) (1998). Section 512(c) deals with information residing on systems or networks at direction of users. 17 U.S.C.A § 512(c) (1998). Section 512(d) deals with information tools. 17 U.S.C.A § 512(d) (1998).
2  Jakob Halpern, Finding a Safe Harbor, 189 N.J.L.J. 1082, 1083 (2007).
3  Id.
4  Jakob Halpern, supra note 2, at 1084.
5  Id.
6  See Field v. Google, Inc., 412 F.Supp. 2d 1106 (D. Nev. 2006) (granting Google’s motion for summary judgment that it qualifies for § 512(b) safe harbor provision for system caching); Parker v. Google, Inc., 422 F.Supp 2d 492 (E.D. Pa. 2006) (finding that Google’s system caching activities fell under § 512(b) safe harbor provision for system caching).
7  Under the conditions set forth in section 512(c)(1), a service provider is not liable if (A) they do not have actual knowledge that the network is being used for infringing, could not know that infringing is occurring on their network, and when they do discover infringing activity, they act quickly to remove it; (B) they do not receive profits from the infringing activity; and (C) they act quickly to remove the infringing content as soon as they are notified by the copyright owners. 17 U.S.C.A § 512(c)(1) (1998).
8  Despite the large number of visitors that YouTube attracts, YouTube does not profit from these visits. See Andrew Ross Sorkin & Peter Edmonston, Google Is Said To Set Sights On YouTube, N.Y. Times, Oct. 7, 2006, at A1, available at 2006 WLNR 17372080.
9  YouTube Videos To Play On Other Sites: Owner Google Hopes To Make Money From Ads Linked To The Clips, L.A. Times, Oct. 9, 2007, at 12, available at 2007 WLNR 19752532.
10  See 17 U.S.C.A. § 401 (1989).
11  See 17 U.S.C.A. § 408(a) (1989).
12  In section 107 of the Copyright Act, also known as the fair use doctrine, Congress placed certain limitations on exclusive rights to copyright ownership. See 17 U.S.C.A. § 107 (1976). Four factors are taken into account: (1) the purpose of the use, such as commercial use or for nonprofit educational use, (2) the nature of the copyrighted work, (3) the amount that is used in relation to the work as a whole, (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C.A. § 107 (1976).
13  See YouTube, Copyright Infringement Notification, http://youtube.com/t/dmca_policy, (last visited Oct. 29, 2007).
14  See generally 17 U.S.C.A. § 512 (1998).
15  YouTube has launched a new anti-piracy plan, called the YouTube Video Identification program. This program will detect unique characteristics of the content posted by its users and prevent these videos from being posted if they contain infringing works. Michelle Quinn, YouTube Anti-Piracy Plan: Give Us Videos You Don’t Want Copied, L.A. Times, Oct. 16, 2007, at 1, available at 2007 WLNR 20280958.
16  U.S. Const. art. 1, § 8, cl. 8.

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