Safe harbour provisions in the US Digital Millennium Copyright
Act protect companies when their services are used to make
copyrighted material available without permission. If the service
provider is just a conduit for the material and takes it down when
notified of its existence, it can evade liability for copyright
infringement. EU laws take the same approach.
User-generated content sites such as YouTube and MySpace depend
on having safe harbour status in order to avoid suits connected
with material carried by their networks. Universal is now
challenging that with a suit which attacks MySpace directly.
"Businesses that seek to trade off on our content, and the hard
work of our artists and songwriters, shouldn't be free to do so
without permission and without fairly compensating the content
creators,'' Universal said in a statement.
The suit comes at a vital time in relations between record
labels and social networking and content-sharing sites. While
Google's YouTube has signed deals with Warner Brothers, Universal
Music, Sony BMG and TV company CBS on the use of their material,
other companies such as Grouper and Bolt.com find themselves on the
end of lawsuits from content owners.
Universal argues in the suit that the terms and conditions of
the site are designed to absolve it of responsibility for material
posted but that they do not. According to news agency AP the suit
says that MySpace asks users to agree to grant MySpace a licence to
publish all the content that the user uploads. Users, though, have
no right to grant such a licence for content they do not own, it
says.
"[MySpace] encourages, facilitates and participates in the
unauthorized reproduction, adaptation, distribution and public
performance,” says the suit, detailing the features on MySpace
which allow users to save copies of videos in their pages or to
share them with others.
“Our music and videos play a key role in building the
communities that have created hundreds of millions of dollars of
value for the owners of MySpace,” said Universal in a statement.
“Our goal is not to inhibit the creation of these communities, but
to ensure that our rights and those of our artists are
recognized.”
"It's unfortunate they decided to file this unnecessary and
meritless litigation,” said a statement from MySpace, which is
owned by Rupert Murdoch's News Corporation. “We provide users with
tools to share their own work – we do not induce, encourage, or
condone copyright violation in any way.”
The suit comes just months after Universal, a subsidiary of
Vivendi and the world's biggest record label, agreed a deal with
MySpace allowing the site's users to view videos.
"We are delighted to be working closely with MySpace in
combining the creative resources of our two companies to offer the
very best in music videos," said Larry Kenswil, head of Universal's
new media and technology division, in February. "It's clear that
there is huge consumer demand for video-on-demand products, and it
is our policy to deliver our artists’ videos and music to fans in
as many new and innovative ways as possible. As such, Universal is
uniquely positioned to capitalise on the many new opportunities
emerging in this rapidly growing area of the marketplace."
YouTube has managed so far to avoid such suits. Struan
Robertson, editor of OUT-LAW.COM and a technology lawyer with
Pinsent Masons, said that YouTube's process for uploading material
offered it more protection than MySpace's does to News
Corporation.
"To add videos to YouTube, a user sees a number of prominent
warnings against uploading copyright-protected material," said
Robertson. "That's a wise thing to do if you run a site that lets
users upload content. But to add videos to MySpace, the only
prominent warning that a user will see is that his account will be
cancelled if he uploads porn. MySpace's prohibition on uploading
copyrighted content is buried in terms and conditions that, at
eight pages long, most users will never read."
"A site with prominent warnings against infringement will find
it easier to convince a court that it neither encourages nor
condones infringement than one without," said Robertson.
