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Viacom Says "YouTube Depends On Us"
Anonycat writes "Michael Fricklas, a lawyer for Viacom, has an opinion piece in the Washington Post laying out Viacom's side in their $1 billion lawsuit against YouTube. Fricklas asserts that the DMCA's 'safe harbor' provisions don't apply because YouTube is knowledgeable to infringement and furthermore derives financial benefit from it. He also argues that putting the onus of spotting infringement onto the content providers represents an undue burden on them. Fricklas caps the argument by stating, 'Google and YouTube wouldn't be here if not for investment in software and technologies spurred by patent and copyright laws.'"
It's going to suck for viacom when youTube calls Stephen Colbert to the stand. He's highlighted original content from youTube, He had representatives of a small comnercial venture (the band OK go) on to talk about how they used youTube to publish an Ad (their music videos), and he has multiple times asked people to make fair use parody content going so far as to make green screen segments to make it easier.
How do you know if a clip is legal to share or not? It could fall under fair use, it could be released to the public domain, it could be completely user created, etc. In some cases, it's obvious, but in most, it's not.
The only one that knows for sure is the content owner, which is why YouTube says that the content owner has to inform them about any clips that gets uploaded without permission, in order to be able to remove them. No one else can.
c++;
they areo rps_newtube/
Viacom bought ifilm, and other studios are working on their own version
http://www.theregister.co.uk/2007/03/22/nbc_newsc
IANAL, yada, yada...
"Grokster, if you recall, was explicit about saying that the company was guilty of contributory infringement only because they *encouraged unauthorized copying. The argument that "they benefited" from this copying was insufficient to that holding. Now here's the argument again..."
I think you misinterpreted the decision. The ruling said that the plaintiffs didn't need to show that the defendants benefited from unauthorized copying by 3rd parties because the defendant's software's primary purpose was to encourage that unauthorized copying. The latter was sufficient to show liability for 3rd-party copyright infringement.
That being said, it's quite a stretch to apply that reasoning to YouTube. In fact, that ruling works in YouTube's favor as YouTube is marketed for the purpose of sharing user-created content. That it is being used (even substantially) for 3rd party copyright infringement is not solely the issue to determine if YouTube is liable for its user's actions. In the Sony case, the Justices noted that VCRs were largely used for 3rd party copyright infringement, but were still protected because they had substantial non-infringing uses. Since YouTube is complying with the DMCA by providing a means for copyright holders to mark their content for removal (and the DMCA requires copyright holders to shoulder the responsibility for finding and marking infringing materials), and assuming that YouTube removes the infringing content upon notification, then I think YouTube will readily prevail.
In the Grokster decision, Justice Breyer noted that the Court cannot possibly decide whether a technology has future non-infringing uses when even professionals in the field cannot agree. As such, it strongly implies that if a reasonable argument can be made for probable substantial non-infringing uses, then it's better to err on the side of the new technology than to decide against it and stifle future commerce.
Grokster is little more than a footnote regarding YouTube, and seems to have very little applicability to it.
Oh, they already are in youtubes shoes :D4 &tid=95
http://slashdot.org/article.pl?sid=07/03/20/15822
Forwarded email from Vint Cerf (vcerf@MCI.NET), September 28, 2000:
Al Gore and the Internet
By Robert Kahn and Vinton Cerf
Al Gore was the first political leader to recognize the importance of the Internet and to promote and support its development.
No one person or even small group of persons exclusively invented the Internet. It is the result of many years of ongoing collaboration among people in government and the university community. But as the two people who designed the basic architecture and the core protocols that make the Internet work, we would like to acknowledge VP Gores contributions as a Congressman, Senator and as Vice President. No other elected official, to our knowledge, has made a greater contribution over a longer period of time.
A Pirate and a Puritan look the same on a balance sheet.
That's not part of the DMCA, but that is a factor in determining whether use of copyrighted material is a vicarious or contributory infringement.
Rather than being part of the safe harbor clause, money is part of the definition of whether something is infringement or not. The financial benefit is important on a different level of the issue and is still relevant.
I'm concerned about the ability of YouTube to filter indecent content as weakening their case as well, but I think there's one saving grace.
Porn is easy to spot. Copyright infringement is not.
Copyright law is far beyond the capacity of the average (or even above average) person. We send our best and brightest off for 3 years of indoctrination in order to have enough of a grasp of the issue that they can argue any particular possible case either way, depending upon who they are representing. Hopefully the court will be able to understand that YouTube is really completely incapable of accurately filtering copyright infringement despite the fact that they are entirely filtering indecent content.
I sent the following comment in to the Washington, Post:
Mr. Fricklas' comnents are, for lack of a better term, a whiner who doesn't like the law as written and wants to sue to get something from the courts that the legislature has clearly denied him. His point that You Tube has knowledge of copyrighted content is not relevant. As his own statement has made, Congress gave sites immunity under the Digital Millenium Copyright Act for sites that quickly take down infringing material. He has not said that Youtube is not removing material when requested; indeed, my understanding is Youtube removes tens or hundreds of thousands of reported clips all of the time. Here, also, he is in effect saying that because Youtube has the capacity to remove material either because it is unlawful or in some way undesirable, Youtube is infringing because of the very controls it is required by law to have to remove infringing material! If Youtube didn't have controls to remove the material, I'm sure that then he'd be claiming that it was not properly designed to comply with the law!
He also writes, "Is it fair to burden YouTube with finding content on its site that infringes others' copyright? Putting the burden on the owners of creative works would require every copyright owner, big and small, to patrol the Web continually on an ever-burgeoning number of sites. That's hardly a workable or equitable solution."
The only problem with his argument is that that has been the exact requirement for the past 200 or so years that copyright has existed; the copyright owner is required - and has always been required - to police his copyrights - and no amount of whining about how a requirement - in existence for hundreds of years - to be changed because he doesn't like it is valid. I'd like to remind this lawyer of a comment by the U.S Supreme court regarding how one obtains one's rights over something:
My guess is that this whole lawsuit is nothing more than a bargaining chip so that Viacom can make more money off their content. Since, like so many other whiney losers, he can't figure a way to negotiate in the marketplace, he goes running to the courts to try and get what he can't win at the bargaining table.
Paul RobinsonGeneral Manager
Viridian Development Corporation
Arlington, Virginia
The lessons of history teach us - if they teach us anything - that nobody learns the lessons that history teaches us.