YouTube's fate rests on decade-old copyright law

Whether YouTube suffers the same fate as Napster may depend on the wording of a nearly antique law written long before video-sharing Web sites were envisioned.

The law is, of course, the Digital Millennium Copyright Act, or DMCA, which made its appearance in the U.S. Congress in July 1997.

That was a year marked by the arrival of Apple's Mac OS 8, Microsoft shares increasing in price by 150 percent annually, and Amazon.com holding its initial public offering. High-speed connections that enable video sharing were a luxury, and the Internet's total population hovered around 19 million people.

Today, more than 1.1 billion people use the Internet, and a huge percentage seem to end up viewing YouTube videos at least occasionally.

In its lawsuit filed on Tuesday against YouTube and its parent company, Google, Viacom claims that more than 150,000 unauthorized clips "have been viewed an astounding 1.5 billion times."

That may be true. But whether the DMCA's wording will let Viacom win--it's asking for a permanent injunction (PDF) requiring Google and YouTube to stop enabling copyright infringement--remains a surprisingly open question.

"I'm not aware that's been tested," said Melvin Avanzado, a litigation partner at Jeffer Mangels Butler & Marmaro in Los Angeles.

Central to the question of Google's legal liability is the phrasing of a densely worded portion--Section 512--of the DMCA. It was drafted by Congress in the days when Web site hosting was a more static affair, and it doesn't clearly address a situation such as YouTube's. That didn't stop Napster from invoking Section 512, unsuccessfully, in its own legal defense.

Section 512's so-called safe harbor generally lets hosting companies off the hook for legal liability, as long as they don't turn a blind eye to copyright infringement and if they remove infringing material when notified. YouTube does the second part through a formal posted policy, and it prohibits uploads of unauthorized videos more than 10 minutes in length.

But what about the safe harbor's first requirement of not ignoring massive infringement? Viacom's complaint says, "YouTube has failed to employ reasonable measures that could substantially reduce, or eliminate, the massive amount of copyright infringement on the YouTube site from which YouTube directly profits." (For its part, Google says it's confident that YouTube has respected the legal rights of copyright holders and predicts that the courts will agree.)

Avanzado, the entertainment attorney, says he expects Viacom to argue that Section 512 doesn't protect YouTube. That's because the safe harbor applies only if the Web site does not financially benefit directly from the alleged infringing work.

"We know what financially benefits means, but every business operates to financially benefit," he said. "So then what does 'directly' mean? Does it have to be with that specific clip that they benefit from?...Those are the kind of issues, and I don't know that the act has been interpreted yet, as to what constitutes a direct financial benefit."

However, attorneys for Google said Section 512 provides more than an ample shield. The DMCA "makes very clear" that Web hosting companies like YouTube and blogging services enjoy a safe harbor, said Glenn Brown, product counsel for Google and YouTube.

"It's a straightforward legal question," Brown said. He noted that YouTube already has deals of some sort with media companies including CBS, Warner Bros., the BBC, the NBA, Universal Music Group and Sony BMG Music Entertainment.

Evidence from a decade ago suggests that politicians never meant to completely immunize a service like YouTube, which could survive without copyright infringement but nevertheless has become much more popular because of it.

A report prepared by the U.S. House of Representatives, in fact, predicted that Section 512 would mostly help copyright owners. The report said the safe harbor "preserves strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital networked environment."

But what Congress intended to accomplish doesn't matter nearly as much as what it did accomplish--because courts interpreting Section 512 will focus on the law's actual wording rather than the murkier question of congressional intent.

Section 512 says Web site operators must not "receive a financial benefit directly attributable to the infringing activity" and that they must not be "aware of facts or circumstances from which infringing activity is apparent."

In practice, that language is sufficiently imprecise that it permits lawyers for both sides to argue that it buttresses their position.

Even the U.S. Supreme Court's decision in the Grokster file-sharing lawsuit hasn't resolved this question. The court said that someone who distributes software with the clear intention of promoting copyright infringement can be held liable-- but nobody, not even Viacom, has suggested that YouTube's executives have been as brazen as the founders of file-swapping companies years ago.

"There are just a lot of open questions about whether what they're doing is in violation of copyright law, is it really pushing the envelope," said Jeffrey Lindgren, an intellectual property attorney at Morgan Miller Blair, referring to YouTube.

One implication of Viacom's complaint is that, if the media conglomerate gets what it wants, the eventual precedent would require Web site operators to police uploads for copyright infringement. That outcome wasn't envisioned by the DMCA's creators either. They tried to establish a notice-and-takedown regime that might have worked when the Internet was much smaller. But that proves problematic when over a billion people are potential uploaders.

YouTube and Google's strategy to force notification of each infringing content "has been a huge source of frustration to copyright owners because what that does is it puts the onus of policing infringement on the copyright owner," said Carole Handler, vice chair of intellectual property litigation at the Los Angeles firm Foley & Lardner. "It's a very inadequate kind of a case by case, specific by specific remedy, which is not tailored to the seriousness of the infringement."

CNET News.com's Anne Broache contributed to this report.

[lingsun]

Youtube engages in copyright infringement on a massive scale.

Youtube engages in massive copyright infringement. They profit from people viewing copyrighted material. They deny any responsibility to the copyright holders. In their own way, they're as arrogant as the music thieves were.

[gustaneras]

That is the price you pay...

When YouTube was only a small company, there were no
lawsuits against them. Why? It was suppossed to be a 'poor
company' lead by two young fellows...
But after Googley bought it for 1.6 billion dollars... it is a 'rich'
company, and where it is money, everybody wants his share...

Viacom videos have been in YouTube since long ago. This will
lead Google just to close it, as there wiil be lots of lawsuits like
this one, just because Google is a whealthy company. And there
is no company that can bear that load of lawsuits, and
EVERYBODY will be without this excellent way of sharing videos.

If Googles buys the Wikipedia Group... A LOT of people will try
to file lawsuits 'because i wrote that'... It is sad, very sad...

I propose a flaming -at least-, maybe a boycott, to every
company that files a lawsuit against YouTube for contents that
have been there before Google bought it. We have to defend our
rights to have YouTube. Even -as in my case- we have not
uploaded any video to it!

[Mergatroid Mania]

Why do they have to interpret the act?

Can't they just ask the guy who wrote it? Or, they could just ask a kid in grade 3 what "direct" means.
(this is why Shakespear wanted to kill all the lawyers)

And since when is a 10 year old law an antique?

[Betty Roper]

Carrying water for Google

Wow, that news blackout really had its effect...

So the DMCA is an "antique law"? How's this for a *really* antique law that still applies: Thou Shalt Not Steal.

[extinctone]

Personally, I think YouTube is going to get its knuckles rapped...

I don't believe that they're going to be able to demonstrate "good faith" under the safe harbor provision. A policy that puts the onus on the copyright holder to monitor and report copyright violations for a service that encourages copyright violations isn't going to play well in court.

[disco-legend-zeke]

Viacom may need to go after the evil uploaders.

when you upload a video to youtube, you sign of (electronically) on a waiver to hold youtube harmless for copyright violation.

and now i just discovered a (beta) way to add licensed music tracks.

i thought i remembered a commercial at the end of each video... guess that was MySpace. Google seems to be going out of its way to "Not benefit directly."

[Gary Treible]

This is a joke (literally)

Take the Comedy Central clips off youtube and there's no reason to
go there.

[rorybaust]

It amkes sense

Just like the RIAA , its just a new revenue stream, one billion dollars, I would like them to demonstrate where their loss occurred, the offset that against the free exposure that U Tube gives them.

Greedy company that goes by the mantra if you can't beat them, can't compete with them , then litigate against them.

Vaicom will lose or else we all lose to a greedy company that wants to charge for everything.

Imagine if you had to pay to see a copyrighted menu. and yes the menu of many fine and not so fine eating establishments would be copyrighted.

[imacpwr]

What was Google thinking when they bought YouTube..??

I mean come on... it was obvious to the simplest of simpletons that
YouTube was distributing copyrighted material for a profit and
Google bought them anyway...?!?!
Hey Google.. I can make you a great deal on some (obviously
stolen) Rolexes..

[Cradelikz]

:(

I'm a youtube fan, and you know...why do we love it it's because it's a great way to see what we can't watch in normal tv.
For example, I can't see recent music video releases, and I do watch 'em on Youtube, then I buy the album, or the DVD!!
But Viacom don't see that!!
it's a free publishing tool!!

We Love Youtube, please...don't kill it!!

[golfman76]

Courts interpret law's wording rather than guess at intent?

"But what Congress intended to accomplish doesn't matter nearly as much as what it did accomplish--because courts interpreting Section 512 will focus on the law's actual wording rather than the murkier question of congressional intent."

Are you kidding me? The Courts' main focus, so it seems, is to 'interpret' what the lawmakers 'intended', trumping what it actually just 'says'.

Especially for things like the 2nd Amendment. For example...

In 2004:
A federal judge upheld the District of Columbia's gun control law that prohibits ownership of handguns. U.S. District Judge Reggie B. Walton...ruled that the Second Amendment does not apply to the district because it was "intended" to protect state citizens, and the district is not a state.
http://www.cnn.com/2004/LAW/01/15/gun.law.ap/

Then just this month 2007:
"The district's definition of the militia is just too narrow," Judge Laurence Silberman wrote for the majority Friday. "There are too many instances of 'bear arms' indicating private use to conclude that 'the drafters intended' only a military sense."
http://www.abclocal.go.com/ktrk/story?section=nation_world&id=5109239 And
http://www.washingtonpost.com/wp-dyn/content/article/2007/03/09/AR2007030902416.html

[avsb1]

Let's try some thing new...

We all knew this fight was going to get official. while both Viacom and Google are media giants in their own ways, only the latter has stepped up for its users in the past. Do you have any facts or views to add? Write a line or share a detailed analysis...both will help. Now's the time to speak, and here's the place: http://viatube.blogspot.com