http://theutubeblog.com/2006/10/11/more-debate-on-copyright-issues-for-youtube/ an unofficial blog on YouTube + the video file sharing industry Sat, 24 Oct 2009 03:12:13 +0000 http://wordpress.com/ hourly 1 http://theutubeblog.com/2006/10/11/more-debate-on-copyright-issues-for-youtube/#comment-65 John Palfrey Thu, 12 Oct 2006 04:05:00 +0000 http://utubeblog.wordpress.com/2006/10/11/more-debate-on-copyright-issues-for-youtube/#comment-65 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. 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.

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