The entertainment giant said that its clips
have been viewed more than 1.5 billion times without its permission
and has sued the search giant and its video sharing subsidiary in a
New York court for "massive international copyright
infringement".
If the case goes to trial it is likely to test
the limits the Digital Millenium Copyright Act (DCMA) of 1998.
Google claims 'safe harbor' status for YouTube, which is a DMCA
protection designed for search engines, web hosts and ISPs to
shield them against liability for third party copyright
infringements. Similar protections exist in European laws.
The safe harbor was designed to protect such
companies from having to monitor the activity of every internet
user, something which was recognised as impractical. These
companies do not have to prevent illegal use of their services
pro-actively, but when properly notified that they host infringing
material they must "expeditiously" remove or disable access to that
material. There is presently no clear judicial authority on the
speed of reaction that qualifies as expeditious under the DMCA.
YouTube was built as a way of sharing videos
made by users themselves, but a vast number of the videos posted
and viewed are not created by the posters but are clips of
television shows and music videos whose copyright belongs to
entertainment corporations.
YouTube and other sites which allow users to
post material for sharing rely upon the 'safe harbor' provisions of
the DCMA for their own protection. The Viacom case will test that
protection.
"YouTube is a significant for-profit
organisation that has built a lucrative business out of exploiting
the devotion of fans to others' creative works in order to enrich
itself and its corporate parent, Google," said Viacom in its suit.
"Their business model, which is based on building traffic and
selling advertising off of unlicensed content, is clearly
illegal."
"In fact, YouTube strategy has been to avoid
taking proactive steps to curtail the infringement on its site,
thus generating significant traffic and revenues for itself while
shifting the entire burden – and high cost – of monitoring YouTube
on to the victims of its infringement," said Viacom.
Though some observers have predicted a pay off
for Viacom, which owns MTV, VH1, Comedy Central and Nickelodeon,
Google has said that it will defend its DCMA protection.
"We will never launch a product or acquire a
company unless we are completely satisfied with its legal basis for
operating," Alexander Macgillivray, Google's Senior Product and
Intellectual Property Counsel told news agency Reuters.
"This is an area of law where there are a
bunch of really clear precedents, so Amazon and eBay have both been
found to qualify for the safe harbor and there are a whole bunch
more," he said. "We will continue to innovate and continue to host
material for people, without being distracted by this suit."
Viacom recently demanded that YouTube remove
160,000 clips which it said violated its copyright. YouTube removed
the clips, but reports emerged that users immediately re-uploaded
many of the clips almost instantly.
There is a requirement in the DMCA that, if a
subscriber or account holder is found to repeatedly infringe
copyright, a company seeking to rely on the safe harbor provisions
must remove that person from its network. This termination policy
must also be written into the terms of use.
YouTube's conditions comply with this
requirement. They state: "YouTube will also terminate a User's
access to its Website, if they are determined to be a repeat
infringer. A repeat infringer is a User who has been notified of
infringing activity more than twice and/or has had a User
Submission removed from the Website more than twice."
The DMCA does not specifically address repeat
infringements by different individuals, one of the biggest problems
for content owners that object to their material appearing on
YouTube. But it does provide an option for "such other injunctive relief as the court may consider
necessary to prevent or restrain infringement of copyrighted
material specified in the order of the court at a particular online
location, if such relief is the least burdensome to the service
provider among the forms of relief comparably effective for that
purpose."
Struan Robertson, a technology lawyer with
Pinsent Masons and editor of OUT-LAW.COM said: "It's possible that
if Viacom's case goes to trial, new guidance will be given on the
safe harbour provisions and the expectations for sites that are
built on user-generated content."
A Supreme Court ruling against file-sharing
firms Grokster and Streamcast in 2005 means that if Viacom can show
that YouTube promoted the infringement of copyright by users, it
would likely be liable for that infringement. But Robertson said
this may be difficult to establish. "There are clear and prominent
warnings in YouTube's upload process, not just its small print,
that tell users not to upload copyright infringing materials."
"The problem is that users can ignore the
warnings," said Robertson. "YouTube and Google know that and have
been working on filtering technology to reduce the infringing
material on its site – but clearly not fast enough for Viacom."
"Viacom will no doubt argue that YouTube's
failure to identify and block infringing uploads is tantamount to
promoting them – and that would be a worrying result for any
user-generated content site," he said.
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