After outlining a debate between Viacom’s and Google’s lawyers last week, I promised to say more about the main issues in the Viacom lawsuit against YouTube. I will develop these issues more later, but here’s a rough sketch:
A. The Business issue: Basically, it’s about money–how and how much Viacom is to be paid by YouTube for clips of Viacom’s copyrighted shows (e.g., Colbert, Daily Show, South Park) on YouTube. The two sides had been trying to negotiate a deal, but talks have been unsuccessful. As I reported before, Viacom had earlier seemed willing to allow some of its clips on YouTube, even some posted there by YouTube users without a license — a sentiment that had been expressed in public statements made by producers of the Daily Show. Even this week, Google CEO Eric Schmidt keeps calling the lawsuit a “negotiating tactic” and indicating that the two sides will come back to the bargaining table. Of course, if they strike a deal, the lawsuit will evaporate.
B. Legal issues: As noted below, I think Issues 1-3 are where the real fight will be. At least from what I’ve read so far in Viacom’s complaint, Issue 4 and especially Issue 5 strike me as pretty flimsy.
1. Any duty to police under DMCA beyond notice and takedown: Beyond maintaining a process of taking down allegedly infringing works upon receipt of notice from the copyright holder as set forth in the DMCA safe harbor, how much other affirmative policing of its site, if any, must an Internet site like YouTube maintain? Under the default approach under the DMCA, it’s pretty clear that an Internet service provider has no affirmative duty to police the site beyond the notice-and-takedown procedure. The default approach does not apply to YouTube, Viacom argues, because YouTube is aware of “red flags” on its site that give it actual or constructive knowledge of the presence of infringing works, even apart from notice-and-takedown. YouTube disputes that it has such knowledge. Under the DMCA, the standard for constructive knowledge is that the ISP is “aware of facts or circumstances from which infringing activity is apparent.” We need to know more facts about YouTube’s actual practices, but this is where one of the fights will be.
2. Netcom defense for automated networks: This issue is related to (1), but the Netcom defense is based on case law and is available in addition to the DMCA safe harbor.
3. Financial benefit issue/DMCA: Does YouTube “receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity”? [More to follow]
4. Business model issue: Is YouTube’s business model predicated on encouraging copyright infringement? This question relates to (3) and (5). Based on the allegations in the Complaint, I think this sounds like a big stretch.
5. Inducement claim/Grokster: Is YouTube actively inducing infringement by taking affirmative steps to encourage others to commit copyright infringement? Based on the allegations in the Complaint, I don’t see this claim going anywhere.
April 19, 2007 at 9:35 pm |
What is the Netcom defense? Does the pre-DMCA jurisprudence on BBS’s exist separately from the DMCA safe harbors, or does it merely inform the DMCA analysis? I know that the DMCA doesn’t preclude other defenses to infringement, but if I lose DMCA safe harbor status then what in Netcom might save me besides fair use?
April 19, 2007 at 10:36 pm |
Hey
Thanks for the summary of the legal issues surrounding this lawsuit. A nice, easy-to-follow summary.
Personally, I’m not convinced that YouTube can last through this suit. As Shelly Palmer has pointed out — such as in his article “Where’s the Business? — YouTube’s model is based on user-generated piracy. (Not user-generated content.)
I don’t see how such a service can remain.
Howard