Zac Echola is muffin but trouble

Be it, Say it: YouTube-gate (no that doesn’t work); GooGate (nope); Viacomplaintiff?

Published on 24/03/07
by Zac Echola

cry me to sleep, little darling

General Council for Viacom, Michael Fricklas, wrote a column about the suit which has no digestible name. In it, he calls YouTube a media company, not a Web company, thereby negating YouTube’s DMCA protections:

YouTube has described itself as the place to go for video. It is far more than the kind of passive Web host or e-mail service the DMCA protects — it is an entertainment destination. The public at large is not attracted to YouTube’s storage facility or technical functionality — people are attracted to the entertainment value of what’s on the site.

Among many arguments, Viacom claims that YouTube “induces” users to upload copyrighted material, which looks like an argument out of MGM Studios, Inc. v. Grokster, Ltd.
which holds that software companies can be sued for copyright infringement by their users (by taking away safe harbor protections from Sony Corp. v. Universal City Studios) and that these companies must take steps to stop copyright infringement through labeling, according to Judge Souter:

We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.

YouTube does this all over the site, and tries to nip the bud right at initial upload, (on both upload pages):

don't copy that floppy

don't copy this floppy either

Clearly, that angle isn’t going to cut it in court. YouTube goes above and beyond the labeling requirements all over the site. So like any good lawyering, Fricklas and Viacom manufacture other arguments, like saying not only does YouTube not fall under protections from the Betamax and Grokster cases, it doesn’t even fall under the DMCA.

They claim that YouTube isn’t a service provider, it’s an “entertainment destination” as if it were one or the other. Even if for every 5 million videos watched, only 50 are uploaded, YouTube is still an “entertainment destination” and a service provider because it does both.

This is where things get murky. Some tech lawyers have rallied behind Google and YouTube:

To try to treat it like a media company, denying it the protections of the DMCA, would be like treating eBay as a full-fledged product company, said Gregory Rutchik, a partner at The Arts and Technology Law Group. (link)

The problem with that logic is that, on eBay, you buy products directly from other sellers and eBay simply facillitates the transaction, they don’t house the products. YouTube does house the products, so to speak.

Viacom should enforce its copyright protections, and it may have a partial case here. But the whining needs to stop:

Is it fair to burden YouTube with finding content on its site that infringes others’ copyright? Putting the burden on the owners of creative works would require every copyright owner, big and small, to patrol the Web continually on an ever-burgeoning number of sites. That’s hardly a workable or equitable solution. And it would tend to disadvantage ventures such as the one recently announced by NBC Universal and News Corp. that are built on respect for copyright. Under the law, the obligation is right where it belongs: on the people who derive a benefit from the creative works and are in the position to keep infringement out of their businesses.

YouTube is well within its rights (assuming its protected under Title II of theDMCA):

(1) In general.â€”A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service providerâ€”

â€œ(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

â€œ(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

â€œ(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

So, please, Viacom, stop telling us how much you hate having to manage your own copyrights and (boo hoo) have to pay someone else to manage them for you. Obstructing markets is costly and hardly works (see the black market for guns and drugs if you need a reference point). Figure out how to go with the flow.