News: The Wall Street Journal asks, Does YouTube Make Google a Big Target for Copyright Suits?, with a back-and-forth email discussion between Jon Palfrey of the Berkman Center and Stan Liebowitz, an econ professor at UT.
At one point, Liebwowitz wrote: “The fact that YouTube is generating revenues from these files may well nullify the safe harbor provisions of the DMCA mentioned by John. In the Napster case the judge told Napster that Napster needed to remove all works for which they did not have the rights and Napster used filtering software that was not perfectly effective (I personally think perfection is an unreasonable requirement). YouTube could similarly be required to police infringements.”
Palfrey later responded: “Google should be able to avail itself of the DMCA’s broad safe harbor for copyright infringement under U.S. law. Whether or not Google makes money on the content is not, and should not be, the issue at stake here. The issue is whether or not Google takes its job seriously in responding to genuine demands to take down copyrighted materials from the YouTube service. To date, YouTube has been a model citizen in this regard: they’ve gone out of their way to license content from big content owners, they’ve been working on fingerprinting solutions to help content owners track their copyrighted materials, and they’ve sought to make it easy, expedited process for submitting a complaint about copyright violations. They’ve even made room for Diddy to have a channel, to which the artist has uploaded BadBoyRecords material to YouTube. Google needs to be accountable to copyright holders. If they are, they should be in the clear for the YouTube service. It’s about creating an accountable Internet.”
Analysis: This is a very interesting discussion. I think both Liebowitz and Palfrey are wrong in some key respects here.
First, I think Liebowitz is factually wrong in his assertion that YouTube is making money on infringing files. YouTube doesn’t. There are no revenues going to YouTube based on some third parties uploading an infringing file onto YouTube. The only way YouTube appears to be making money is with advertising and negotiated deals with legitimate businesses.
Second, I think Palfrey is wrong in suggesting that it doesn’t matter whether YouTube does or does not benefit financially from infringing files. Under the DMCA safe harbor provision, the Internet service provider must NOT receive “a financial benefit directly attributable” to the infringing material, in order to be eligible for the safe harbor. Incidentally, though, based on my first point, YouTube should be able to satisfy this requirement.
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October 12, 2006 at 4:05 am |
My point wasn’t that financial benefit is never relevant in the analysis. As you note, it could come up in the context of a DMCA 512(c)(1)(B) context, if YouTube derives a financial benefit directly attributable to the infringing content (and you make the case yourself why this might not be so) AND if YouTube has the “right and ability” to control the user-posted content. Given the good-faith efforts that YouTube seems to be making in this regard, I think that they (and their Google parent co) will be able to meet the standards necessary to avail themselves of the safe harbor provisions of 512. The other context in which financial benefit might kick in is in the fair use analysis, where the commercial/non-commercial divide is relevant, as is effect on the market, but where neither is dispositive. And that’s the core point I was trying to make: this case would not turn solely on whether Google/YouTube is making money on the content, but rather on a complex set of factors where financial benefit is not, and should not be, the key consideration. I recognize that Prof. Liebowitz and others disagree with me on this score, but that’s how I read the law, anyway.