YouTube WILL removed infrinigns works only after obtaining a license from copyright holdersAdditionally, YouTube will grant filtering technology to business partners who grant licenses, but not to companies who decline giving licenses.Exlusive right to reproduce- Viacom does sell and host its content through authroized venues like its own websites, iTunesYouTube receives financial benefits directly attributable to the infrining activity by displaying banner advertising to users whenever they log on to, to search for, and view infringing videosYouTube KNOWS people want to watch these shows, and they often show up in their “most viewed” lists. They can’t not be aware.
US Copyright Act of 1976
YouTube creates the thumbnails, which are indiviudla frames from videos in its libryra –including infringing videos- for the purpose of helping users find what they are searching for. PUBLIC DISPLAY
YouTube then publicly performs the chosen video by sending streaming video content from YouTube’s servers to the user’s computer.Embedding- the video will appear on a new website as a television-shaped pictures with the YouTube logo prominently displayed.
PORN- YouTube proactively removes porn based on user flagging and reviewBUSINESS PARTNERS- YouTube will use filtering technologies for business aprtners that grant licenses to YouTube, not will withhold those technologies to those who do not offer licenses.TIME LAGS- Time diff between a vid is posted and when it is avaiable for search to send a takedown notice“FRIENDS”- Allows users to make uploaded vids private to only their friends, making it impossible to find1,000- YouTube claims this is for searching ease sake for users, but only 1,000 clips will show up, even if there are 5,000 results, making it impossible for a copyright owner to even see all their infringed clips
COUNT 5- “Actual and Constructive Knowledge”- aware but don’t remove 512: “
“Actual knowledge”- simply knowing infringement is going on is not enough to incriminate. Must have specific examples.“Financial Benefit”- constitues a draw. Viacom argues it does- go to the site to watch Colbert, end up staying on to watch other thing
Unclean Hands- If there is any history of Viacom infringing, their argument goes out the window.
Financial benefit- YouTube employees could’ve been told to upload to get more hits
Control- YouTube does, but Viacom argues it’s not enough. Users can create new names.
Viacom v. YouTube
Viacom V. YouTUbe<br />The controversy: a history and its implications<br />By Elizabeth Shelby<br />
Who is Viacom?<br /><ul><li> Media conglomerate which owns 2 networks (MTVN and BETN) comprised of smaller networks, including MTV, VH1, Comedy Central, BET, CMT, Nickelodeon, among others
Producer of popular original shows like The Colbert Report, The Daily Show, SpongeBob SquarePants, among others</li></li></ul><li>Who is YouTube?<br />Created in 2005 by PayPal employees<br />Bought by Google in 2006 for 1.6 billion dollars<br />Video hosting site, hosting both user-generated and pre-existing content<br />Based on 2009 numbers, over 20 hours of video are uploaded every minute<br />
What’s Going On<br /><ul><li>On March 13, 2007 after sending hundreds of thousand of unanswered takedown notices to YouTube one month prior, Viacom files a 27 page complaint against YouTube in the Southern District of NY under Judge Louis Stanton
Viacom seeks statutory damages for ea. infringement or $1 billion in actual damages</li></li></ul><li>So what’s the problem?<br />“YouTube has willfully, intentionally, and purposefully reproduced, publicly performed, and publicly displayed the copyrighted works, and/or knowingly facilitated, enabled, induced, and materially contributed to the infringing uses thereof, and/or refused to exercise its ability to control or supervise infringing uses thereof from which it obtains direct financial benefits”<br />–from Viacom’s 3/13/07 complaint filed against YouTube<br />
Viacom Claims<br />YouTube:<br />Hosts more than 150,000 unauthorized Viacom-owned clips, which have been viewed more than 1.5 billion times<br />Publicly performs infringing videos<br />Puts the huge responsibility and cost of monitoring an infinite amount of clips for infringement on the copyright owner (Viacom)<br />Usurps Viacom’s “exclusive right to reproduce”<br />Profits directly from Viacom’s protected material (“The Daily Show with Jon Stewart,” “The Colbert Report,” “South Park”)<br />
“Plaintiffs have the distinct, severable, and exclusive rights to, among other things, reproduce, publicly perform, and publicly display their copyrighted works”<br />17 U.S.C. Section 106 (1), (4), (5)<br />
Filtering and Finding<br />Porn<br />Business Partners<br />Viacom must employ over 30 full-time staffers to scour YouTube for infringements manually<br />Inevitable time lags<br />“Friends”<br />No more than 1,000 video search results<br />
Claims for Relief<br />Count 1: Public Performance (Streaming and embedding)<br />Count 2: Public Display (Thumbnails)<br />Count 3: Reproduction (Unauthorized copies)<br />Count 4: Inducement of Copyright Infringement (Usurping content owner’s Rights)<br />Count 5: Contributory Copyright Infringement (Actual and Constructive Knowledge)<br />Count 6: Vicarious Infringement (Not allowing filtering)<br />
Google’s Defense (filed 4/30/07)<br />Among others, Google’s main defense is that it is protected by the DMCA Safe Harbors (or section 512)<br />
DIGITAL MILLENIUM COPYRIGHT ACT SECTION 512<br />
1998<br />“Safe Harbor” provides a limitation of liability of Internet Service Providers (ISPs)<br />Transitory Digital Communications (Conduit Liability)- transmitting, routing, providing connections<br />Caching- intermediate and temporary storage<br />Web Hosting- making space available on your server for someone else to post things **<br />Information Location Tools (search engines)<br />
Subsection C- “Web Hosting”<br />An ISP…<br />(i) must not have actual knowledge<br />(ii) ...is not aware of facts or circumstances about infringing activity<br />(iii) upon obtaining awareness, acts expeditiously to remove, or disable access to, material<br />Cannot receive financial benefit directly attributable to infringing activity <br />Responds expeditiously to remove infringing material<br />
Debate<br />Google:<br />512 puts the obligation to spot infringement directly on the content owner<br />Google only has an affirmative duty to respond to takedowns<br />Unclean Hands Doctrine<br />Viacom:<br />Burdensome & expensive<br />Millions of files, Viacom employs 30 full-time staffers<br />There is too much owned content to go through manually<br />What about the other 300 file hosting sites?<br />
YouTube’s Smoking Gun<br />In October 2009 evidence emerged that (allegedly):<br />A) YouTube employees were among those uploading Viacom’s material<br />B) Through internal emails, YouTube managers acknowledged their awareness of Viacom’s material on the site but intentionally chose not to remove it<br />If found to be true, this will effectively dismiss YouTube’s defense that it (i) had no actual knowledge, (ii) was not aware of infringing activity, (iii) always acted expeditiously to remove infringing material<br />Financial benefit? <br />
Questions/Implications<br />Should there be different exceptions for different numbers of owned works? (Viacom’s # vs. Elizabeth Shelby’s #)<br />Did Congress anticipate this problem?<br />Control: An ISP must have a takedown and repeat infringer policy<br />If you have too much control, though, you may fall out of Safe Harbor<br />