Interviews with Digital Media Thought Leaders

Why YouTube Beat Viacom

Podcast Audio | Posted by Phil Leigh on August 1, 2010

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Our guest today is Jim Burger who is a copyright attorney with Dow, Lhones in Washington, D.C.

Three-and-a-half years ago Viacom asked YouTube to “take-down” 100,000 unauthorized postings of Viacom-copyrighted content. YouTube complied completely within a day. A month later Viacom filed a complaint in the Southern District Court of New York seeking statutory damages against Google (YouTube’s parent) for copyright infringement. Copyright statutes specify that damage awards can be as much as $150,000 per violation thereby representing a potential Google vulnerability of $15 billion. Viacom owns Paramount Pictures, Comedy Central, MTV, VH1, Nickelodeon, BET, and similar media properties.

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The court selected by Viacom is traditionally sympathetic to copyright holders. But in June it ruled decisively in favor of YouTube.YouTube argued that it was not guilty of infringement by virtue of the 1998 Digital Millennium Copyright Act. Certain provisions of the Act protect web hosting companies from copyright infringement in instances when it is their customers who are the culprits. For example, if a user uploads an unauthorized video that is copyrighted, that user is the infringer. He is the one who posted the video. YouTube merely provided a space for him to store it. However, hosting companies like YouTube are required to promptly “take down” the infringing files whenever a copyright holder notifies them of a violation. Undeniably, YouTube complied with alacrity.

However, Viacom argued that the 1998 Act requires YouTube to do more than merely execute “take down” notices. Viacom maintained YouTube must proactively identify and remove unauthorized user postings because YouTube knows infringements are common. The court ruled against Viacom by judging that YouTube must have specific knowledge of such infringements. YouTube users post twenty-four hours of video every minute. It is impractical, if not impossible, for a hosting company to inspect and certify in advance that all such postings do not infringe. It is up to copyright holders to protect their rights by providing the “take down” notices.

Additionally, YouTube could not know which postings of copyrighted files are authorized and which are not. For example, most user postings employ pseudonyms. YouTube could not know if the pseudonyms represent infringers, copyright holders, or licensees of copyright holders. In point of fact, it was discovered that some of the 100,000 files Viacom told YouTube to remove were actually posted by copyright holders including Viacom itself.

Viacom also argued that YouTube was required to be proactive because it (1) profited from the infringements, and (2) “processed” the video files as well as stored them. For example, YouTube automatically converts (“processes”) uploaded videos to Flash because of the format’s suitability for streaming. Essentially, the judge ruled that the two points were trumped by the fact that YouTube has no way of knowing if uploaded files are violations for the reasons noted above.

The court’s decision is important. If it ruled against YouTube, hosting companies would be held financially responsible when their customers upload copyrighted material to the host’s servers. But there is no way to control what a user might choose to upload. Bits are bits. Unless the file contains a fool-proof identifying tag there is no automated way to determine copyright ownership. Moreover, files stripped of such tags are indistinguishable from copyright-free files.