Why it matters what Chad Hurley watches

Copyright videos are plentiful on YouTube but is the site responsible?

(Credit: YouTube)

What will it mean for YouTube if founders Chad Hurley and Steve Chen have, like many of us, entertained themselves by watching pirated videos found on their site?

Viacom will likely argue that YouTube is guilty of contributory copyright infringement if computer records show employees know unauthorized clips from shows, such as Hogan Knows Best or The Hills, are on the site and don't do anything to remove them.

According to legal experts, YouTube's response is likely to go something like this: "How are we supposed to know what's copyright material and what isn't?" The site is a promotional tool for scores of TV networks and movie studios, which often post their own videos.

The battle royal began in early 2007 when Viacom accused Google, YouTube's parent company, of violating copyright law. Soon after, Viacom hit Google with a $1 billion lawsuit.

The case could now become a landmark and answer a major question in online video, said Mark Litvack, an entertainment lawyer with Los Angeles-based Manatt, Phelps & Phillips.

"Who has the obligation of monitoring Web sites for copyright violations," Litvack said. "Is it the copyright owner who must police sites and be required to send takedown notices, or should Web sites be forced to filter for copyright material?"

Employee data easier to get than users'
The two companies are in the discovery phase of their litigation, when each is supposed to turn over relevant information to the other. On Monday night, the two sides announced they had finally agreed that YouTube would mask YouTube's user information, such as usernames and IP addresses, before handing it over to Viacom. Now, a new disagreement looms on the horizon.

Direct copyright infringement could undermine YouTube's DMCA claims.

--Mark Litvack, attorney

The two sides have been sparring over whether Google must give up information on which videos YouTube employees watch and upload to the site, two sources told CNET News this weekend. Google will unlikely succeed at blocking Viacom from obtaining at least some of this information, said Wendy Seltzer, a fellow with Harvard's Berkman Center for Internet and Society.

"It's arguably more relevant to the litigation (than the user records) because it would be part of what Viacom is trying to prove," Seltzer said. "If the records show that YouTube had knowledge, or the records fail to show that knowledge, then that would be relevant to Viacom's case."

From Google's perspective, what's at stake here is YouTube's protection under the Digital Millennium Copyright Act. The DMCA's Safe Harbor provision shields Internet service providers from being held responsible for illegal acts committed by users. But to qualify for the harbor, a company can't have knowledge of copyright violations and must quickly remove infringing material when notified by a copyright owner.

Viacom has maintained that YouTube's pirate treasure isn't buried. The copyright material is impossible to miss, the media conglomerate maintains. The parent company of MTV and Comedy Central will no doubt argue it's inconceivable that YouTube is unaware of the infringing content on its site.

Who can argue that YouTube isn't home to countless clips from feature films and TV shows?

In April, I tooled around YouTube for a half hour and found clips from the last five Academy Award winners in the best picture category, including Million Dollar Baby, No Country For Old Men and a 10-minute clip from the opening of The Departed. As of Tuesday, the clip still appears on the site.

Could YouTube lose DMCA protection?
But just knowing that the videos exist at YouTube may not qualify as infringement. How can YouTube managers be expected to determine which clips are unauthorized?

It's simple to argue that everybody knows The Godfather is owned by Paramount, a Viacom company. But what about the unlimited number of lesser-known works?

I don't think that copyright owners should be able to outsource the enforcement burden to service providers.

--Wendy Seltzer, attorney and Harvard fellow

How would YouTube determine the ownership of a small independent film or Ecuadorian soap opera?

"This is why the burden of finding (copyright violations) should be on the (copyright owners)," Seltzer said. "We really don't want to put the service providers in the middle. Viacom and rights holders are in the best position to determine what they own."

As for the costs of monitoring YouTube, Seltzer said that whatever it is, "it's just the cost of our intellectual property system...I don't think that copyright owners should be able to outsource the enforcement burden to service providers."

As for what kind of damage to YouTube's case may occur if employees are found to have watched pirated videos, the answer is that it could be very minimal. The judge is likely to look at how much illegal video was viewed by how many employees and ask whether it was bad faith or not, said Seltzer.

What could prove much more damaging, however, is if Viacom uncovers proof that YouTube's employees uploaded unauthorized clips as part of their duties. To those copyright holders, who have wondered for years whether YouTube's workers were violating copyright, this would be a smoking gun.

Direct copyright infringement could undermine YouTube's DMCA claims, according to Litvack.

"Red-flag knowledge"
Here's another scenario that could drastically change the color of the case. What if YouTube finds that Philippe Dauman, Viacom's CEO or Stephen Colbert, host of Viacom's The Colbert Report uploaded clips to YouTube?

YouTube has always said that big media corporations have split personalities when it comes to YouTube. Their marketing departments might beg YouTube to promote their shows or movies one day and the next day the same company's lawyers might demand YouTube pull them down.

If it's determined that Viacom employees uploaded videos, then those clips were authorized and there's no copyright violation, Seltzer said. She added that in such a scenario, YouTube could argue Viacom prevented YouTube from discerning between authorized and unauthorized clips.

"YouTube is going to say that (Viacom's uploading) was an implied license," she said. "YouTube might argue that it couldn't have had red-flag knowledge about (all the other Viacom videos) because it knew to the contrary that the copyright holder wanted some of them posted."

It should be noted here that employees from neither YouTube nor Viacom have ever been accused of uploading clips to video-sharing sites.

At this point, there's no telling who has the upper hand in this case. Nobody knows whether the DMCA covers a user-generated video site like YouTube. Is it really a service provider or an entertainment site wrongfully profiting from the work of copyright owners?

Google's YouTube did get some good news this week. Internet auctioneer eBay fended off a trademark infringement lawsuit filed by Tiffany & Co.

Trademark is different from copyright law but the arguments are surprisingly similar. The jeweler accused eBay of profiting from sales of counterfeit Tiffany goods, but the judge in the case found that it's up to brand owners to police for phony products.

Will the courts determine the same for copyright holders?

[mpitogo]

Viacom can stand to grow up in the digital age and pick up where youtube left of and fight fire with fire.

[alflanagan]

It doesn't matter who "polices" copyrighted content, it's not going to work. The cat's out of the bag, the ship has already sailed, the horse has left the barn. Adapt or die.

[pho0ze]

Has the film industry not learned a thing from the music industry?

This is the RIAA riots all over again. Guess who won?

Yup, consumers.

[jamalystic]

I don't consumers stand to win in this case. I even believe that such friction among the major digital players will undermine every privacy fight we may want to put up. But this whole saga is just an ice berg of the coopyright dilemma we are now facing:Why 'Rethinking' Copyright Law Is a Huge Mistake(http://www.internetevolution.com/author.asp?section_id=556&doc_id=155800&F_src=flftwo)

[Renegade Knight]

Why would an employe know who has the rights to distribute (or permission, or fair use) than anyone else? They wouldn't unless their specific job was to confirm that and they had the training and expertise to do so.

[marc_90292]

I entirely agree with the statement that VIACOM or its subs and employees give an unconditional license to embed material posted by them on websites. If that is not what they want then all they have to do is disallow embedding, as many already do.
However, using YouTube as a cheap advertising site and then complaining that coyrights are being violated if somebody watches the videos Viacom employees place on view and license to use - that is the peak of hipocracy, an abuse of judicial process, and frivolous.

[Alessandro Machi]

I pretty much agree with marc_90292.

I would also like to add that Viacom and others studios should be paying a fee to youtube for allowing them the freedom to see what the public wants and likes BEFORE they commit to new talent contracts. Youtube also allows them to evaluate the staying power of existing talent.

What we are witnessing is the studio trying to put YouTube on the defensive for illegal uploads of their product (a valid concern), WHILE THE STUDIOS IGNORE THE FINANCIAL BENEFIT they receive by having the ability to see how quickly their product goes viral on Youtube.

Talk about job security, if I worked for Viacom I would always look to Youtube for trends before I made a move. Are you a wannabe actor who is going to be the next Tom Cruise? Well, don't bother showing up to the studios UNLESS you have at least one really big hit on Youtube. Do you know how much money the studios are saving by being able to access YouTube at every stop of the production process?

Speaking of which, why is it acceptable for the studios to steal from each other? Every time the studios view an actors demo reel, they are stealing! The acting clips on the demo reel have been illegally captured and re-edited together, yet the studios use them to evaluate talent and experience of actors they are considering for future projects. They do this because it saves them money by allowing them to make informed decisions. Does that sound familiar?

I would suggest that YouTube hook up with "Nielsen" so they can give the studios key information about demographics and overall unique users who view their product while keeping a certain level of viewer anonymity in place.

[spark9991]

youtube founders chad and chen both probably uploaded copyrighted videos in the early days of youtube to get people to come to youtube in the first place...one that comes to mind for me is the 'saturday night live' skit that showed several cast members bobbing up and down...my bet is chad posted that or had his staff do it...with so many video sites out there that was the only way youtube could break out, by showing the outrageous stuff from tv...and it worked. chad and chen sold for hefty gain...google will argue dcma but it's a diversion from the early work of chad and chen to be the napster of video which is what youtube is

[Peferling]

Although I can see where Viacom is attempting to do damage control, the real root cause of the problem is the changing culture of a younger generation that is unwilling to pay for the privilege of access. Access to content that folks my age didn't have twenty years ago without taking a drive to theatre and paying an entry fee.

The current monopoly is outdated, take YouTube down, and a dozen more sites will pop-up, and unless you change the culture of the internet itself, most likely impossible to enforce.

At best this is a short term fix, as the final blow will be dealt within a few short years when these kids reach adulthood and are the ones in charge. How they vote will most certainly change the rules in favor of free access. Unfortunately, copyright might be something that gets in the way. I shudder to think of that scenario, but that's change for you.

[Ischyros]

I agree in a way. If you're Viacom, why not try to partner up with NBC/Universal and Fox to join Hulu and put your movies and TV shows on there! Better quality for the user, it's free for the user, and they get the entire movie or episode!

[smokified]

"Who has the obligation of monitoring Web sites for copyright violations," Litvack said. "Is it the copyright owner who must police sites and be required to send takedown notices, or should Web sites be forced to filter for copyright material?"

This statement here perfectly illustrates why the Unites States has gone belly up over the past 30 years.

It is neither of these people's responsibilities period. It is the people who are violating the law by posting the copywrited materials themselves. You can continue to attack these places of business who host these sharing sites, and you will NEVER make the improvements on the issue. If you start making consequences for the people that are actually posting the videos, people will be far less likely to engage in activities like this in fear of actually getting in trouble.

Right now the general public does not suffer very harsh consequences as a whole therefore they have no reason to care. You take down Youtube and a new site will arise in it's place. Why is it that the people in charge of this **** seem to be the most clueless. ******* stupid government.

Just another example of improper use of blame. Everyone continues to attack the results of a problem instead of facing the hard reality and dealing with the source of the problem. The stupidity angers me beyond sanity.

[amitjain17]

I thought the whole idea behind the lawsuit was that Viacom wants to prove that YouTube is nothing but a hosting site for copyright material and is earning money on someone else's (like Viacom's) videos. Isnt that the reason why Viacom initially requested the user activity and see if majority of users on YouTube come for general videos or copyrighted ones like movies and TV Shows? I really dont see how YouTube would win this one.

[abubakarx]

well if the service providers are not responsible, than why all the fuss about p2p networks? Why did not the courts say "hey Sony, it your problem that the X p2p network has your content onit. X was made just to carry files, if your copyright is infringing go tell them and they'll remove it from there". But no they had to shutdown whole sites and p2p networks.
For some reason after reading this article, I think a lot of software/websites can be called service providers.