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May 9, 2007

More Thoughts on the Google YouTube Lawsuit Mess

Maybe Mark Cuban was right about YouTube when he declined to buy the site stating that it was a copyright infringement bomb waiting to go off.  Not exactly his words, but close enough to his meaning.  Cuban may not have been up to the challenge of defending copyright infringement allegations any more than his NBA Mavericks were against the Warriors.  Google bought YouTube and now the suits are starting to pile on.

First out of the gate was Viacom.  First courting with YouTube as partners, Viacom sued for massive infringement violations when they couldn't cut a deal.  Then adding insult to indignant injury Viacom cut a deal with Yahoo! for content distribution. 

NBC Universal is one of Google's partners on YouTube but complains that unauthorized content appears on the site.  It has sided with litigants against YouTube in friend of court briefs in various actions.  When a company such as NBC Universal cuts a deal, it doesn't mean everything they broadcast is fair game, just that authorized content is available through a branded NBC channel.  The same goes for other companies that have deals with YouTube.

YouTube account holders, however, seem to have little understanding of content distribution deals, and even with awareness, have little care in observing their terms.  They are not party to the agreements after all.  They upload infringing content, YouTube gets a take-down notice and removes the content. They upload it again.  Partners are frustrated because they have to send another take-down notice.  YouTube responds again and also suspends the user account.  The notification process by content holders is the process that Congress created.  Congress did not specify that the process changes whether there is one infringement or hundreds of thousands.

Journalist Robert Tur sued YouTube in its pre-Google days for posts of his overhead video of the Los Angeles riots in 1992.  Both NBC and Viacom files briefs supporting Tur, although they went to great pains to distinguish their situations from his.  He is one plaintiff with one claim, while they have thousands.  Past precedent in case law suggests he will lose.  Courts have upheld the safe harbor provisions in defamation cases, and even in one case where MySpace was sued when a third party molested a member.  Is the number of concurrent violations significant compared to single incidents?

That's the rub for Viacom and other potential plaintiffs.  They claim YouTube doesn't move fast enough on the take-down notices and they want YouTube to take responsibility for identifying copyrighted material and removing it.  The YouTube business model, they claim, does not fall under the safe harbor provisions because they make money from the alleged violations.  Congress did not require sites to be self-policing in order to encourage free flowing discourse on the Internet.  It's not as if commercialization didn't exist in 1999 when the DMCA passed, although the vision as to where it would go in 2007 was not there.

Now comes the English Premier League suing YouTube in a class action case for infringement by allowing users to post excerpts of games.  Copies of the class action suit filings are here.  Google responds the same cheerful way they do with all of these actions, that they comply with all provisions of the DMCA, and that they provide tools to copyright holders to identify content so that it can quickly be taken down. 

These actions may or may not get to trial based on any of the preliminary rulings issued by the various courts involved.  None of the actions are really at that stage at this time.  One thing Viacom and others may not have counted on was YouTube and Google willing to push the issue of their business model under the DMCA.  There is more at stake here than posting unauthorized content to one site.  A ruling against Google and YouTube affects other sites such as MySpace, Facebook and other social networking sites where people meet and share.  Their business model is just as much as stake in this.

May 9, 2007 | Permalink

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