The YouTube phenomenon has swept the Internet in a relatively short period of time, but with this popularity has also come an onslaught of copyright infringement litigation. The most significant of this litigation is the1 billion-dollar lawsuit initiated by Viacom in March 2007. Since then, a number of other major media companies and publishers have joined the group of powerful media company plaintiffs. Most recently, The Football Association Premier League and The National Music Publishers’ Association joined the suit [i]. These media conglomerates and publishers may be concerned with different forms of media but the claims against YouTube are the same; that YouTube is knowingly allowing, and in effect encouraging copyright infringement by its users, and further, that YouTube is profiting from the infringement.
This case is of importance because the outcome could have a huge effect on how user-submitted content is treated by websites of all kinds, whether its video sharing, blogging, or virtual avatars. Specifically, it has huge implications for the Safe Harbour provisions of the U.S. Digital Millenium Copyright Act (DCMA) and fair use rights [ii]. Under the Safe Harbour provision, service providers cannot be held liable for their users’ infringement if they promptly respond to takedown request by copyright owners [iii]. It is that very provision that YouTube asserts as its defence to the Viacom litigation.
The current judicial climate in the U.S. would suggest that the courts could favour the copyright owners’ rights in the YouTube case and read a limited protection into the Safe Harbour provision. The potential reason for this? Copyright law is seriously lagging behind new developments in technological exploitation of works, and a potential solution is to put a positive responsibility of monitoring and prevention on the service providers.
The first indication of this extended liability/limited protection is found in MGM v. Grokster. In Grokster the court held 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, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device's lawful uses” [iv]. The court identified three factors that should be considered when determining whether there was intent to encourage infringement. 1) whether the service is provided to satisfy a known demand for copyright infringement; 2) whether the provider utilized filtering or other infringement preventing software if it was available; and, 3) whether the provider monetarily benefits from the infringement, i.e. advertising revenues from high usership because of the draw of the access to copyrighted materials[v].
All of these factors could possibly be found in the YouTube case, and following the approach in Grokster, it is possible that it will be interpreted the same way. It could be said that because YouTube is well aware of the enormous amount of infringing material on their website, that merely providing the means is aiming to satisfy a known demand for copyright infringement. Secondly, although now YouTube has developed filtering tools (as recently as Monday October 15, 2007) they ignored calls for years to implement such devices. Third, advertising is the sole source of YouTube’s enormous profits.
The ambiguity in the DCMA and the legislative lag behind technological development could very well explain the U.S. courts owner-friendly decision in Grokster. It could be fears that if a tight reign is not kept on user rights, copyrights could be eroded all together as new unanticipated means of exploiting works arise. The flip side to this protection is that although it may create some semblance of consistency and predictability, this kind of liability could seriously stifle technological innovation. Creators would always be worried about being on the hook for a third party’s infringement [vi]. This undermines one of the very purposes of copyright protection in the first place – the promotion of innovation. It would also significantly affect the business of every major Internet company who rely on the Safe Harbour provision [vii]. Implementing measures to prevent infringement by their users would no doubt exponentially increase their legal fees and operating costs.
It will be interesting to see how the policy concerns will be balanced in this case. Will the desire for increased certainty and predictability for copyright in the face of new technology prevail? Or does this come at too high a cost to user rights and technological innovation?
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[i] Macleans.ca, “Music publishers join case against video-sharing site YouTube” August 7, 2007.
[ii] Jacqui Cheng, “SueTube: sex, copyright, and rock & roll” June 19, 2007.
[iii] Wikipedia, “Digital Millenium Copyright Act” Oct 16, 2007.
[iv] Ken Fisher, “Hollywood prevails in MGM v. Grokster” June 27, 2005.
[v] Ibid.
[vi] Ibid.
[vii] Supra note 2.