YouTube: Platform For Exchange of Original Videos or Copyright Infringement?

In a suit filed by Viacom against Google for alleged illegal distribution of its copyrighted content, the Court has ordered YouTube to provide its logging database for discovery purposes. Viacom seeks access to this database in order to show that most YouTube viewers are interested in copyrighted material, not videos created by other users. Why is this finding important to Viacom?

If the CCH case applied, Viacom would be required to prove that YouTube had control over its users and encouraged them to infringe copyright. The argument of encouragement would likely fail, as YouTube requires its users to upload only original videos. But the huge amount of unauthorized material on its website may suggest that either YouTube does not enforce the requirement of originality or has no ability to do so.

Viacom could argue that YouTube has the ability to control the uploads and does in fact actively block “inappropriate” videos, while allowing copyrighted materials. Google might contend that pornographic materials are easy to detect, whereas YouTube administrators cannot be expected to easily recognize copyrighted videos. If this is true, why does YouTube take no step to block obviously infringing videos such as movies produced by major studios? This should pose no technical difficulty to the world’s leading search engine. Such “filtration” would reduce infringement to less known works, which could then be left to the owners to detect and report. YouTube obviously has the ability to control the videos and failure to do so amounts to deliberate choice to tolerate infringement. Under CCH this would probably not be enough to qualify as “encouragement”, as it wouldn’t under Grokster’s “inducement” test, according to which Viacom would have to prove that YouTube had taken affirmative steps to encourage infringement.

However, Viacom could rely on traditional theories of contributory or vicarious infringement to prove YouTube’s liability for secondary infringement. Under these theories, Viacom could easily prove that YouTube knew or should have known about the infringing activity and contributed to it by providing its server and a web-based application. Alternatively, it could argue that YouTube had “a right and ability” to control infringement, but instead allowed violation and made money by generating significant traffic and selling advertising space. According to Lohmann, it is not clear whether the Betamax defense would apply. If it did, it would be enough for YouTube to show that its service is “capable of substantial non-infringing use” as there is a significant amount of non-infringing material on its website. It is possible that Viacom seeks access to YouTube’s logging database in order to rebut this “substantiality” argument by showing that it is primarily, if not solely, the infringing material that YouTube users view and consequently it is this material that generates revenues for YouTube. The rest, no matter how abundant, has no practical value.

To conclude, YouTube will likely be held liable for secondary infringement unless the Court chooses to rely on the onerous “inducement” theory, under which Viacom will have hard time proving encouragement on YouTube’s part.