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In Part I of this two-part series addressing the Viacom/YouTube lawsuit, I detailed why I think there's a reasonable likelihood that Google will be found liable for direct, contributory, and vicarious copyright infringement.

A large part of Google's defense against the allegations Viacom has made is based on its belief that YouTube is protected by the Safe Harbor provisions of the Digital Millennium Copyright Act (DMCA).

The Safe Harbor provisions were designed to protect "service providers" from copyright infringement liability provided that they meet certain criteria.

These criteria require that the service provider:

  • Does not have actual knowledge that the material or an activity using the material on the system or network is infringing.
  • In the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent.
  • Does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.
  • Upon notification of claimed infringement, responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

The definition of a "service provider" is also relevant to the discussion.

The DMCA defines a "service provider" as:

"an entity offering transmission, routing, or providing connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received" or "a provider of online services or network access, or the operator of facilities thereof."

Now that the basics of the Safe Harbor provisions are established, let's evaluate the strength of Google's claim that it is protected by them.

Criteria 1 and 2

Has Google lacked actual knowledge of copyright infringement on YouTube or awareness of "facts or circumstances from which infringing activity is apparent"?

As I noted in Part I:

"Given the ease with which copyrighted material can be located on YouTube, the number of takedown notices that it has received under the Digital Millennium Copyright Act and the discussions over the legal risk Google was taking when it acquired YouTube, it is difficult to argue that Google has been completely clueless about the extent to which YouTube has been a vehicle for wholesale copyright infringement."

It appears highly probably that Viacom will be able to use the YouTube user data that the court handed over to it to quantify just how prevalent the infringement activity on YouTube has been. This will make it difficult for Google to argue that it does not have actual knowledge and/or awareness of it.

Google will certainly argue that with 10 hours of video being of uploaded to YouTube each minute, it is physically impossible for the company to monitor and identify every piece of infringing material and that in any case, there is so much user-generated material available that the benefits of YouTube's noninfringing uses offset the infringing uses.

Yet as I noted yesterday, in A&M Records, Inc. v. Napster, Inc., the appeals court's decision stated:

"Regardless of the number of Napster’s infringing versus noninfringing uses, the evidentiary record here supported the district court’s finding that plaintiffs would likely prevail in establishing that Napster knew or had reason to know of its users’ infringement of plaintiffs’ copyrights."

Thus, I find that it is going to be difficult for Google to convincingly argue that it lacked knowledge about all of the infringing Viacom material that YouTube has been a haven for.

Criteria 3

Google's desire to make money from YouTube is no secret and Google CEO Eric Schmidt even stated that this is the company's "highest priority this year."

The $200mn in revenue it is expected to generate this year may be short of expectations but it's still a non-negligible amount in absolute terms.

Google monetizes YouTube primarily through advertising and when it comes to infringing material, YouTube has two possible means by which it can benefit financially:

  • Advertising is displayed directly alongside the infringing content.
  • The infringing content is such a key driver for YouTube's popularity and traffic that it is reasonably a key driver for overall revenue.

Google, of course, will argue that it has little ability to police YouTube for copyright infringement and therefore any financial benefit it derives from infringing material is unintentional.

This, however, is again where Viacom's access to YouTube user data will be handy.

As detailed in Part I, in Fonovisa, Inc. v. Cherry Auction, Inc., the court found that financial benefit does exist "where infringing performances enhance the attractiveness of a venue."

If Viacom can show that infringing material accounts for a significant amount of activity on YouTube, it will be hard for the court to overlook the fact that YouTube's viability as a business is largely dependent upon that infringing material.

When it comes to evaluating the level of "control" Google can exercise over infringing activity on YouTube, as discussed yesterday, a fairly compelling argument can be made that Google hasn't done everything it is capable of doing.

I would further argue that it doesn't take a rocket scientist to figure out one of the biggest reasons why - Google knows that if it implemented tighter controls (i.e. placed greater limitations on search terms like "The Daily Show"), the inability to access the type of infringing material that contributed so heavily to YouTube's popularity in the first place would reasonably lower YouTube's appeal and thus its financial potential.

As such, I find that Google is going to have a very difficult time convincing anyone that it has not benefited financially from copyright infringement and that it hasn’t intentionally tried to walk a fine line by trying to do just enough to create the appearance that it respects copyright but at the same time doing less than it is capable of to ensure that the infringing material that is a draw for so many of its users doesn’t go away completely.

Criteria 4

Google will argue that it when it receives notice of copyright infringement, it acts expeditiously to remove the infringing material. And by in large, it does appear that Google has responded promptly to DMCA takedown notices.

Viacom's counter-argument will certainly be that there is so much infringing material on YouTube that it would be nearly impossible for Viacom to provide a takedown notice every time it finds a piece of Viacom material on the service. It will also likely argue that any requirement to incur all the costs related to the monitoring of infringements on YouTube places an undue burden on its business.

In my opinion, this will be one of the more interesting aspects of the lawsuit because it will force the court to ponder the question - if a service becomes such a haven for infringing material that the DMCA takedown regime becomes an unmanageable, costly and almost impossible process for the copyright owner, to the benefit of the operator of the service, what should be done?

Of course, Google's ability to claim that it is simply following the procedure laid out by the DMCA is wholly dependent upon the court finding that the DMCA applies to YouTube in the first place so this may be rendered a moot point.

Is YouTube a "service provider"?

Does YouTube qualify as a "service provider"? While it would seem to fit the mold of "a provider of online services or network access, or the operator of facilities thereof," it's worth considering that the court could find differently.

In A&M Records, Inc. v. Napster, Inc., the court refused to extend the "service provider" definition to Napster even though it appeared to meet the literal definition of the term.

Although the reasons for that decision may be different in the Viacom/YouTube case, there are still viable reasons.

I have talked to several people in the legal profession who are familiar with the DMCA and the general consensus is that the concept of a "service provider" as used in the DMCA implies some sort of passive role in the facilitation of data exchange.

Whether a "service provider" is an ISP or a hosting company, the common characteristic is that the "service provider," for the most part, plays a passive role in the exchange.

YouTube has a far more active role:

  • As I noted yesterday, "When a video file is uploaded to YouTube, YouTube's servers apply a physical process to the file to transcode the file into the Flash video format so that it can be displayed in YouTube's Flash video player. This transcoding is an integral part of the YouTube service and one could argue that without this, the wholesale distribution of infringing content on such a service doesn't take place."
  • While YouTube does "host" the videos that its users upload, it is not merely a "host."

    Through its Flash player, YouTube enables all users (not just the uploaders) to view uploaded videos, it provides a searchable index of the videos so that users can easily locate videos and it makes it easy for users to "share" content with other individuals and online services.

    YouTube calls itself "the premier destination to watch and share original videos worldwide through a Web experience," highlighting the fact that the company sees itself as more of a "media destination" than a traditional "host" or "internet service provider."

Based on my discussions on this issue, I think there's a reasonable argument to be made that when the DMCA was conceived, the intention was to provide protections to businesses less active than YouTube in potentially infringing activity.

Because of the above, it's hard to argue that YouTube would have been the type of service that the authors of the DMCA had in mind when they wrote it. Thus, YouTube's role in materially contributing to copyright infringement may give the court pause when deciding whether or not to consider YouTube a “service provider” under the DMCA.

Conclusion

YouTube's DMCA defense is, in my opinion, tenuous at best.

While quite a few observers argued that the DMCA would protect Napster, the outcome of that case should serve as a warning to Google - no matter how big and popular, you can't rely on the law to protect you when you're on the wrong side of it.

At the end of the day, given recent case law, I am hesitant to believe that a court is going to overlook Google's clear knowledge of infringing activity as it relates to Viacom's material (and the overall size of the YouTube copyright infringement problem in general) and the benefit it has derived from it.

As I see it, the facts of the case simply don't support Google's argument that the Safe Harbor provisions of the DMCA apply to YouTube and if its Safe Harbor defense falls apart, the rest of Google's case falls apart with it.

Drama 2.0

Published 24 July, 2008 by Drama 2.0

237 more posts from this author

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Ben Silverstein

I think so much of this is getting out of hand. Yes, some people are putting things on YouTube that shouldn't be there and may or may not be legal. But this isn't the only place where issues like this happen. Howard Stern was unpopular on regular radio, so he moved to Sirius. TV hosts sometimes say inappropriate comments and are fined or apologize. Controversial articles are printed in newspapers and magazines almost everyday. But does that mean that one mistake can ruin everything else? No. So a few people are abusing YouTube, It happens and will continue to happen. I don't think Google should be responsible for the actions of others who are out of their control and if it is found that they are, will Google restrict YouTube? I hope not, because that would be the beginning of the end of YouTube. People would just move to another site and the do the same thing over again like what happened with Napster. Kill one and ten more will pop up over night.

about 8 years ago

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George Riddick

Bravo! Excellent job on Part 2, just as you have done with Part 1.

As I mentioned yesterday, this is the best review of the substantial and obvious facts in the Viacom v. Google/Youtube case that I have seen in over a year. In my view, this case will be settled soon (at Google's insistence), but this summary will still be invaluable to the tens of thousands of smaller copyright developers and publishers who have suffered these exact same kinds of damages.

As an even sadder note, I have found that virtually all of the major media, software, search, and technology companies (including Microsoft, Yahoo, Ask.com, AOL, CNET, and others) have followed Google's lead here and continue to faciltate and profit from flagrant copyright infringement activity, while pretending that the ten-year-old DMCA gives them the right to do so. It is shameful in my opinion, and will be in virtually everyone else's opinion, as well, once they have the opportunity to read your excellent two-part explanation of the allegations in this case, and understand the true facts that Google is trying its best to hide from the courts (and the public!).

Thank you for this excellent piece of journalism.

George

George P. Riddick, III
Chairman/CEO
Imageline, Inc.

griddick@imageline2.com

about 8 years ago

Drama 2.0

Drama 2.0, Chief Connoisseur at The Drama 2.0 Show

Ben: Howard Stern's move to Sirius, inappropriate comments on TV and controversial articles have absolutely nothing to do with Viacom's lawsuit against Google so I really don't follow the point you're apparently trying to make.

This is not about a "few people" abusing YouTube. In early 2007, Viacom sent a takedown notice to YouTube demanding that 100,000 video clips it believed violated its intellectual property rights be taken down. These clips reportedly generated over a billion "views."

It takes little more than a cursory browse of YouTube to come to the conclusion that YouTube is a haven for copyright infringement.

The bottom line is that there are laws which grant certain rights to the creators/owners of creative works, like Viacom, and there are consequences for those who violate them.

Under the laws that lay out these consequences, Google's "control" may be called into question and Google may be held secondarily liable for the actions of its users. If you don't like that, that's too bad. It's the law. You do believe in the rule of law, don't you?

You may be correct in stating that a victory by Viacom will not stop infringement but it would send a very clear message to legitimate companies like Google that are trying to profit illegitimately from the wholesale infringement of other entities' copyrights.

Finally, it's worth noting that Viacom has been a leader in distributing its content digitally. Much of its programming is available on the websites it operates and it has signed distribution agreements with third-party services such as Hulu.

Thus, it is impossible to argue that Viacom is trying to keep users from enjoying its content online. It simply wants to leverage its reproduction and distribution rights to ensure that it is compensated appropriately when third-parties use its content.

This, I should point out, is in *your* best interests because if you enjoy any content produced by companies like Viacom, you'll appreciate that without a compelling profit motive, there wouldn't be an incentive for any of them to produce quality content.

about 8 years ago

Drama 2.0

Drama 2.0, Chief Connoisseur at The Drama 2.0 Show

George: thanks for the kind words. They're appreciated.

I do think there are companies that deserve protection under the DMCA and that, in general, the purpose of the DMCA is legitimate. In most situations where a company is passively and generally facilitating the exchange of information, the DMCA's Safe Harbor provisions make a lot of sense.

That said, many companies have fashioned themselves as "media" firms instead of "internet service providers" (YouTube is a prime example) and not only do I believe that many of these companies don't qualify for DMCA protection (at least for some of their activities), I also don't believe that the DMCA was written to protect them in the first place.

Viacom's case is extremely important. If Google is found to qualify for the DMCA and to have been in compliance with it, I suspect we'll see an even bigger push for restrictive new copyright legislation that probably isn't required because frankly, given YouTube's direct involvement in its users' infringement (coupled with its knowledge of the infringement), I don't see how the reasonable interpretation of existing law isn't sufficient to find Google in violation of Viacom's copyrights.

about 8 years ago

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rosaleekira45

i am the loyal fans of http://www.tvokay.com
just go to http://www.tvokay.com watch full movies and TV shows...
the best movies and tv-shows at http://www.tvokay.com

about 8 years ago

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Lawrence

In my opinion YouTube is not an ISP but a an online publication.

I see ISPs as providers of the infrastructure for users to do what they want. They provide connectivity and web space for content to be published, but it's not their content and they apply limited regulation to how their service can be used (ie. don't publish illegal stuff).

YouTube provide tools, as you have pointed out, a specific interface and functionality to publish videos within their own branded site. They can't argue against this definition whilst placing adverts all over the place, surely?

If YouTube only allowed videos to be embedded on third party sites then yes, they would be an ISP.

My hope is that Google will lost its case and that some draconian measure will be imposed (eg. every video must checked before before it's published). If this makes the YouTube model unsustainable so be it.

about 8 years ago

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Ray Gordon

I am "Parker" in "Parker v. Google" and now "Parker v. Yahoo et al." (E.D.Pa #07-2757). This court has held extensive oral arguments on Yahoo's motion to dismiss. I'm alleging that search engines do with text what YouTube does with video: they copy material, republish it, and use it to sell ads.

The "control" YouTube has is over the existence of the site itself. Search engines actually "spider" the web and copy the material themselves, and in my case against google, THAT was ruled legal, as if by publishing a website I somehow surrendered my copyright.

The DMCA was designed to protect message-boards and e-mail providers/ISP more than YouTube, although one could argue the same principle applies. But where do you draw the line? How many takedown notices can a copyright holder send? Even then, they make money prior to each notice being received.

As for the "direct financial benefit," they are required BY LAW to maximize profit for their shareholders, since they are a publicly traded company, which is what I'm going to argue.

about 8 years ago

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