YouTube Granted Safe Harbor From Viacom

eldavojohn writes "It's an old case, but there was an interesting development today when a judge ruled that YouTube is protected from Viacom by the safe harbor provisions of the DMCA, since YouTube helps rights owners manage their rights online and works cooperatively with entities like Viacom. Google's calling it a victory, but I'm not sure if Viacom will take this without a fight."

Comments

Re:About time

[Reilaos]

Yeah. If I want annoying comments, I can just skulk around /. while my torrents... torrent.

Youtube may be safe

[Anonymous Coward]

But viewers of Viacom remain at great risk.

Not Sure?

[value_added]

From a randomly selected article

We believe that this ruling by the lower court is fundamentally flawed and contrary to the language of the Digital Millennium Copyright Act," Viacom said in a statement. "We intend to seek to have these issues before the U.S. Court of Appeals for the Second Circuit as soon as possible."

Re:Not Sure?

[mwvdlee]

Seems like Viacom would prefer to have the power to force companies to do it's dirty work AND sue them afterwards.

Re:Not Sure?

[AnEducatedNegro]

Could this have anything to do with it?

aEN

Re:Not Sure?

[dgatwood]

What I'd like to see is for Google to grow some cojones when it comes to dealing with the big media conglomerates. The second Viacom tried to sue to get YouTube's safe harbor status taken away, Google should have immediately:

• blocked Viacom's corporate IP range from access to all Google services, including search.
• removed all Viacom properties from Google's search index, including their TV networks' pages.
• mass-scrubbed all pages from third-party sites that reference Viacom properties (e.g. TV.com pages about shows on Nickelodeon).
• sat back and waited for Viacom to stop being morons.

Re:Not Sure?

[Dragoniz3r]

And subsequently lose potential searchers to Bing or Yahoo because they couldn't find what the wanted to find on Google? Uhhhhh, let's just stick with items #1 and #4.

Re:Not Sure?

[dgatwood]

Or flag it as a virus site. People will find the site and be horrified.

Re:Not Sure?

[Guppy]

What I'd like to see is for Google to grow some cojones when it comes to dealing with the big media conglomerates.

I respectfully disagree with the listed tactical options, however. "Don't be evil" is a main reason that Google gets a pass on its dominance in the search market and online advertising space. A refusal to use its market power to punish adversaries is part of that -- it is an essential part of what makes the difference between a legal and illegal monopoly.

Re:About time

[Anonymous Coward]

If slashdot comments are the inane ramblings of semi-literate retards... then I don't know what words remain to accurately describe youtube comments.

Re:About time

[MozeeToby]

Or better yet, stop trying to sue your potential customers and instead offer a cheap, high quality, DRM free, and above all legal download option and actually make money off of it instead of losing money in litigation costs. Personally, I very rarely download things that I can legally acquire some other way, but if there was an option for unlimited downloads of the things I watch for a fair (think ~$5 per month) cost I'd jump all over that and kiss my cable subscription goodbye.

Good

[Adrian Lopez]

Not only should YouTube not be liable for what its users choose to post online, YouTube shouldn't even have to provide copyright holders with any special tools for handling infringing content.

If we as citizens are required to live with the DMCA's restrictions, it is only fair that courts give Viacom no special treatment either. Google's only responsibility is to take down infringing content when properly requested to do so by copyright holders. As long as it continues to do that according to the terms of the DMCA, YouTube should not be expected to do anything more. Viacom should consider itself lucky that YouTube goes beyond the DMCA's requirements and provides them tools such as content detection and a streamlined process for getting rid of allegedly infringing content -- they are not entitled to any of that under the law.

Re:Good

[Tolkien]

It actually is within Google's best interest to provide these detection tools. Only however in that if they weren't provided, Viacom et al would produce their own detection tools which inevitably would resemble some form of automated digital/analog screen/audio scraping/capture of Youtube videos, which would needlessly waste far more Google (and intermediaries) bandwidth than would be necessary with Google-provided tools.

Re:Good

[Bryan3000000]

Really? Google directly profits from YouTube (at least, that's the business idea). Citizens don't, at least not commercially. I think it makes perfect sense to have Google responsible in some way, and I think this safe harbor provision makes perfect sense, if we're talking about commercial activity. When we're talking about non-commercial activity, none of it makes sense. But remember, if it's YouTube, it definitely IS commercial activity for Google, even if the users are not engaging in commercial activity.

If someone wants to run their own (non-commercial) servers and put stuff up (only personally - not providing other users the ability to do so), then I think we're in a different arena as far as copyright. That's when it's arguable that provisions like fair use and the free culture ideals should start to apply. Just so long as there are no commercial activities run alongside - as in ads placed on the page, or any other commercial type of activity.

The problem is that when it comes to the internet, people are still thinking that we're in the early days of the net where universities (non-profit educational, not commercial) hosted most sites, and there were no advertisements or other commercial activity. Now, the internet is almost purely commercial. In fact, even if it's a personal, non-commercial site - if it's hosted in a commercial facility, there's a pretty good argument that it has commercial activity associated with it. Someone is profiting, even if it's only for bandwidth.

Bye-bye cultural phenomenon of the net. We deeply and sincerely miss you. Well, at least we miss the possibilities you held.

Re:Good

[MarkvW]

Your post does not accurately state a general principal. Often a person can "participate" in a crime and not be culpable of that crime. It is not right to say that "all that participate in the crime of sharing are culpable." Sometimes, people can be held VICARIOUSLY liable for the acts of others, but only if the legislature explicitly makes it so. The legislatures do not always do that.

Easy examples that come to mind are statutory rape and abortion. The victim of a statutory rape is a non-culpable participant in the rape. The woman seeking the abortion is often not criminally liable for the abortion, but the doctor is.

Our legislatures are entitled to make fine distinctions. That's a good thing. Rigid adherence to general principles leads to injustice.

Re:Good

[Alanonfire]

The case was about the inventers of youtube purposefully uploading copyrighted content to boost its user-rate to get offers to sell. It also stated that Google knew what was going on when they bought it. Not just that "oh Joe in Jersey uploaded clips of Thundercats."

Re:Good

[Kirijini]

Sometimes, people can be held VICARIOUSLY liable for the acts of others, but only if the legislature explicitly makes it so.

Vicarious liability developed under common law. This means that it is a judge-made law, and statutes are not necessary for its enforcement. In fact, the US Copyright Act of 1976 doesn't include vicarious liability, and yet courts do find some defendants vicariously liable.

The following is taken directly from Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 434-35 (1984):

"The Copyright Act does not expressly render anyone liable for infringement committed by another. ...The absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity. For vicarious liability is imposed in virtually all areas of the law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another."

It was always a long shot for viacom

[91degrees]

This does seem to be pretty much what the safe harbor provisions are about.

Okay - really it was written at a time when people actually paid for web space, and it was to protect the providers from the copyright infringement of their paying customers rather than their free users, but in principle this is what the provisions are for.

Re:It was always a long shot for viacom

[NewYorkCountryLawyer]

This does seem to be pretty much what the safe harbor provisions are about.

Exactly. The motions should not even have had to be made. If I were the judge I would be considering sanctions against the plaintiffs.

Re:It was always a long shot for viacom

[e4g4]

Being anti-RIAA does not imply being anti-IP. I'm the same way - I want my software protected by copyright, but I'm not going to be a dick about it and sue a technologically illiterate grandmother for orders of magnitude more than the offense is really worth if I think there's a *chance* she got a copy of my software illegally. Besides, why are you being so hard on Mr. Beckerman? At least he contributes meaningfully to the discussion (unlike your little rant here (and my response to it, for that matter)).

Re:It was always a long shot for viacom

[Anonymous Coward]

And you're just a whiny little bitch posting from his mothers basement.

Viacom violating their own IP

[interkin3tic]

I can't understand most of the PDF posted there, anything in there about how Viacom uploaded their own material so they could bust youtube for it? It would be nice if that bit of douchebaggery came back to screw them over, though I expect that's too much to ask from justice.

Re:Viacom violating their own IP

[FrostDust]

Summary judgment means the judge sided in favor of Google based on their DMCA argument alone, before the full trial began. Other aspects of this case, such as Viacom uploading their own stuff, or Google's internal emails, weren't considered in the scope of this.

While some may have wanted to see them held responsible for their "douchebaggery," I feel this is a better result. This strongly affirms the use of the DMCA's Safe Harbor as defense against copyright infringement, instead of mucking it up with other details.

Re:Viacom violating their own IP

[jbengt]

. . . anything in there about how Viacom uploaded their own material so they could bust youtube for it?

No, no need to. In fact, in order to find in favor of Youtube's summary judgement motion (which decides the case without a trial) the judge had to assume all of the disputed facts in Viacomm's favor.
Summary judgement cannot judge matters of fact, only matters of law. The judge decided that the safe harbor provisions of law do not allow Viacomm to sue even if what they alleged is true.
(note, however, that the judgement implied that there might still be other issues left open for trial)

Online Service Provider

[srussia]

As defined by DMCA, practically anyone can be an OSP and claim safe harbor:

(A) As used in subsection (a), the term "service provider" means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.

(B) As used in this section, other than subsection (a), the term "service provider" means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).

Re:Online Service Provider

[DragonWriter]

As defined by DMCA, practically anyone can be an OSP and claim safe harbor:

Not true. As the excerpt you pasted makes clear, almost anyone can be an OSP. Claiming safe harbor, however, requires both being an OSP, and complying with the requirements of the safe harbor provision, which essentially only apply to content posted by those to whom the OSP provides services, where the OSP doesn't review them in advance, and where the OSP complies with the take-down provisions of the DMCA safe harbor.

Re:Online Service Provider

[Kjella]

That's probably less than half true, there are four exceptions to USC 17512 and each have their own requirements. The two first paragraphs are easy to achieve that cover routing and caching, like for example if you have a home router for some tenants or an open wifi. However, the material question in such cases will be who did it, and the DMCA will only protect you if the court finds it probable it was somebody else. Then and only then are you protected from liability from routing or caching it.

The third paragraph which is for hosting and among other things require that you have a designated agent registered with the copyright office, most people will not qualify. The fourth is for search engines, and also have a fair amount of limitations but less than for hosting. Your hand edited collection of links will certainly not be protected under this paragraph, you have to operate something far more automated where you don't have actual knowledge that the material or activity is infringing and is not aware of facts or circumstances from which infringing activity is apparent. And for both of those, you must have a DMCA takedown process in place and follow it.

Re:About time

[Anonymous Coward]

Actually, YouTube's 720p and 1080p videos are excellent quality. I'd still download a 1080p Blu-ray rip of a movie I wanted, but to generalize by saying YouTube is crappy quality isn't correct. There IS a lot of crap, but there's a lot of very nice looking stuff as well.

As for YouTube comments.... I got nothin'. They're horrible.

Re:About time

[Anonymous Coward]

Illiterate brain dead idiots? I don't even want to call them human. I consider "frist-rost" comments to be a higher level than that of YouTube comments, and that's just sad.

Re:About time

[Anonymous Coward]

"Oooo! $5! Right away sir!" - MPAA

Re:About time

[RulerOf]

fair (think ~$5 per month)

Too low.

Even though I'd prefer cheap/free over something that costs money, I highly prefer legitimate sources over illegitimate ones.

To get a fair price, add up the minimum amount of money you'd have to spend to get all the content you like, and let's pretend for argument's sake that you can get HBO and Showtime and Starz without having a $100+ cable package to throw it on top of.

Broadcast TV = Free, HBO/Showtime/Starz = $10/mo each, Movies = $10/mo via Netflix.

So let's say $50/month when you throw out terrestrial broadcasts' commercials because paying for them is bullshit. Now cut it in half. $25/month minimum to $50/month maximum depending on your package with a la carte options available at each tier AND... AND... you can bundle it with your internet connection and telephone line for better savings. And seeing as how Comcast owns NBC these days, it's a win/win for them.

But that would make sense and be immensely profitable, but not as profitable as the packages people pay for these days but never use so we'll never see it happen. Oh well.

[rant]
While we're at it, why don't we try to get a connection that solves the bandwidth problem by selling bandwidth caps instead of transfer caps, but that would make sense too.
[/rant]

Re:About time

[Kjella]

if there was an option for unlimited downloads of the things I watch for a fair (think ~$5 per month) cost I'd jump all over that and kiss my cable subscription goodbye.

So you pay for cable. On top of that they make money on cable ads, that'd quickly be removed from such a service. On top of that you probably pay for some DVD box sets of TV shows. Possibly a DVR subscription on top. I bet that totals up to more than $5/month, particularly the money not coming out of your pocket but the advertisers. You know what I hear as a corporation? "Blah blah blah blah please sell your products for 10% of the money you make today blah blah blah". I guess you can always ask, but if you want it to save a lot of money and make them lose a lot of money I'm not surprised they're unenthusiastic.

For me the selling points are convenience, simultaneous worldwide release, maximum quality and freedom to watch it under any OS, on any hardware from anywhere on my own schedule for all time. I don't expect them to go for anything that's less profitable than what they have today, they're a corporation and per definition is profit-seeking. It's not going to be like I don't watch 80%, so my bill would get cut 80%. They know you won't watch everything and that's priced in, if they split it up they'd have to raise prices on each item to have the same income. It's the same as with the people that started when iTunes went up, for 10 cents/song they'd buy but not a dollar as if 90%+ of the cost was printing the CD.

Send Lawyers . . . and money . . .

[MarkvW]

This is just Chapter One. Google can only win at this stage if you consider all of the facts in Viacom's favor and, given those facts, rule that the law requires that Google must win.

The upcoming appeal to the federal circuit court is the really big next act. If Google wins there, it may portend total victory. Otherwise, it's back to the federal district court for more litigation (and more money for the lawyers!!!).

pouring out a 40 for my homie Veoh

[Trepidity]

Veoh won some of the first strong precedents in this area, and the current case cites its cases prominently (see pp. 24-27). The cost of the litigation sent them into bankruptcy soon after winning, though.

Unfortunately for the plaintiffs, this time they seem to have picked an opponent who is very hard to beat in a war of attrition.

Re:pouring out a 40 for my homie Veoh

[John Whitley]

Unfortunately for the plaintiffs, this time they seem to have picked an opponent who is very hard to beat in a war of attrition.

No kidding. GOOG's market cap is about $153.53B right now, while VIA.B's is $21.42B. Google has about $26B in cash and short term investments. Viacom has $358M. Google's gross profit is >3x Viacom's.

Re:About time

[OrangeCatholic]

>But that would make sense and be immensely profitable, but not as profitable as the packages people pay for these days but never use so we'll never see it happen.

Oh it'll happen. Right now probably 95% of customers are still happy paying for TV the old fashioned way. By "happy" I mean that they do it.

Internet customers are a niche market and still poorly understood. Compare to DVR customers five years ago - we existed, but not on anyone's radar. Right now all you get on the internet front are trial balloons like on-demand or YouTube, just curiosities really.

But once internet becomes dominant, they will have to post more. Example, I still have not seen any customers hook up their computer to their TV. Even though their 55" LED Samsung is, in fact, a computer monitor. Once it clicks in people's heads that they are watching a computer, they will start looking there for content.

Re:About time

[OrangeCatholic]

>Actually, YouTube's 720p and 1080p videos are excellent quality.

Are they?!?!

When I click on "HD", the window stays the same size. So how is that HD? It seems to me all the 720p button does is upgrade the compression.

Also, YouTube is terrible at caching, constantly re-streams even if you've downloaded the whole clip, isn't very good at fast forwarding, rewinding, or seeking, and in general has terrible sound quality. And I haven't seen anything longer than 10 minutes, either.

If it's so bad that people can see your content...

[mykos]

Maybe they should just show their films and TV shows in a secure underground bunker to viewers who are patted down and forced to watch the movie wearing handcuffs, blindfolds, and ear plugs. After "watching" the film, they must submit to a mind wipe on the off chance that they detected some copyrighted detail.

There, now your copyright is safe!

Wait, scrap that. Let's just cut out the middleman and send thugs to beat money out of people directly if they are suspected of thinking of watching a movie.

Re:About time

[Alphathon]

When I click on "HD", the window stays the same size. So how is that HD?

What do you mean the window size? If you mean the box on the page, it shouldn't stay the same size.

It seems to me all the 720p button does is upgrade the compression.

In a lot of cases it does seem that way; that is not YouTube's fault though. A lot of cameras that will save in HD resolutions don't have HD sensors so use interpolation and various tricks to increase the res. Even those that do have HD sensors often don't look HD due to poor focusing etc. I'm also pretty sure some people who capture in SD upscale before uploading. I have seen some really good HD uploads onto YouTube, be it in 1080p or 720p, but most of them, as you say look little different than 480p (or sometimes even 360p)

Re:About time

[zenasprime]

The viewer is NOT the customer. The Advertisers are the customer. You are just an inconvient reality of their business model. ;)

Re:About time

[bjourne]

Well, you are right. 5$/month is unrealistically crazy cheap. Then make it 100$/month for unfettered access to any movie. If I could download any movie in dvd quality at any time, watch it on linux without having to go through bullshit drm and not be bothered by ads, I'd pay a lot for that service. That is the kind of deal that would make me put my pirating days behind me. But it is not being offered by any legal entity.

Dr. Who - mind altering buttons

[freaker_TuC]

"The Beast Below" and the big red FORGET button.

Don't press FORGET and you'll be sent to the Spaceship UK crapper.

The best bit!

[The Good Jim]

From the Guardian...

"Most embarrassingly for Viacom, court documents revealed in in March that at the same time that it was suing Google and YouTube, Viacom was itself uploading its content in secret and trying to make it look stolen - so that people would be more interested in it.

One excerpt from the documents filed by YouTube was particularly notable for the embarrassment caused: "Viacom's efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself."

http://www.guardian.co.uk/technology/2010/jun/23/youtube-wins-viacom-lawsuit

So Viacom were being pretty dodgy about IP in the first place, then complaining!

Re:How is this different?

[_Shad0w_]

Google/YouTube does what the DMCA requires them to do: it takes down content when a copyright holder points it out and asks them to do so; that is why the judge has reaffirmed that they have protection under the safe harbour provisions of the DMCA.

Viacom is, I suspect, whining because Google is easy to sue and have lots of money, whereas the people who are actually uploading copyrighted content are hard to find and probably don't. They are more interested in doing what is easy, rather than what is correct.

And the other side of the coin

[Mathinker]

The case was about the inventers of youtube purposefully uploading copyrighted content to boost its user-rate to get offers to sell. It also stated that Google knew what was going on when they bought it. Not just that "oh Joe in Jersey uploaded clips of Thundercats."

You forgot the part where Viacom saw YouTube was the "hot" marketing thing and started uploading its own content there disguised as pirated media. And then they often couldn't figure out they had authorized the material and sent Google a DMCA takedown for their own uploads.

There are two sides to this case. I'm waiting for the discovery evidence of Viacom's behavior to become part of the pleading in a private infringement case:

"But Judge, we've seen in Viacom vs. YouTube that Big Media upload their own content disguised as pirated stuff --- I just assumed that [random torrent] was such a disguised authorized distribution!"