Court’s DMCA interpretation everything for YouTube

Florence-Marie Cooper, the judge in the Robert Tur vs YouTube/Google copyright infringement lawsuit has dismissed motions by both sides for a summary judgement in the case. Her ruling is that more evidence is necessary to determine if YouTube is protected from liability by the Digital Millennium Copyright Act.

As so many have now said, the copyright infringement cases against YouTube are going to come down to this – Is YouTube protected by the DMCA?.

Here are excerpts of her reasoning and decision…
I find it fascinating to see this play out, for a quick synopsis, read her final paragraph.
United States Disctrict Court
Central District of California

Robert Tur d/b/a Los Angeles News Service (Plaintiff)
YouTube, Inc. (Defendant)

YouTube’s Motion
YouTube’s ultimate eligibility for “safe harbor” protection depends upon whether YouTube can prove that it satisfies certain threshold elements common to all of the safe harbor provisions.

YouTube must prove that:

  • 1. it has adopted and reasonably implemented a termination policy for subscribers and account holders who are repeat infringers,
  • 2. accommodates and does not interfere with “standard technical measures” that copyright owners use to protect their works,
  • 3. its infringement is “by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider”,
  • 4. it lacked actual knowledge of the infringing material or was not aware of facts or circumstances from which infringing activity was apparent on its system or network and/or acted expeditiously to remove or disable access to the material upon obtaining such knowledge or awareness,
  • 5. it did “not receive a financial benefit directly attributable to the infringing activity,” if it had “the right and ability to control such activity”,
  • 6. it responded expeditiously to remove or disable access to infringing material upon notification from the copyright owner, and
  • 7. it has properly designated an agent to receive such notification.
  • YouTube maintains it does not receive a financial benefit directly attributable to the allegedly infringing activity and that it does not have the right or ability to control said activity. As the statute makes clear, a provider’s receipt of a financial benefit is only implicated where the provider also “has the right and ability to control the infringing activity”.

    As such, if YouTube does not have the right and ability to control the alleged infringing activity, the Court need not engage in the “financial benefit analysis.”

    The “right and ability to control” infringing activity, as the concept is used in the DMCA, has been held to mean “something more” than just the ability of a service provider to remove or block access to materials posted on its website or stored in its system. Rather, the requirement presupposes some antecedent ability to limit or filter copyrighted material.

    There is insufficient evidence regarding YouTube’s knowledge and ability to exercise control over the infringing activity on its site. There is clearly a significant amount of maintenance and management that YouTube exerts over its website, but the nature and extent of that management is unclear. YouTube also asserts that while it is able to remove clips once they have been uploaded and flagged as infringing, its system does not have the technical capabilities needed to detect and prescreen allegedly infringing videotapes. However, there is insufficient evidence before the Court concerning the process undertaken by YouTube from the time a user submits a video clip to the point of display on the YouTube website. Thus, there is insufficient evidence from which the Court can determine YouTube’s right and ability to control the infringing activity.

    Accordingly, the Court DENIES YouTube’s motion
    June 20, 2007


    Thus, the great debate is layed out. What makes it difficult is that clearly YouTube is in compliance with some safe harbor aspects of DMCA. If you look at the 7 provisions, as stated by Judge Cooper, I think YouTube is in compliance with 1,2,3,7 and maybe 6 (though that can be argued). Where YouTube is not in compliance, to me, and this is the main infringment argument, is provision 4 and 5.

    4) YouTube lacked knowledge of the infringing material and
    5) YouTube did not receive financial benefit from the infringing material.

    That part of the DMCA case will be hard for YouTube to make.

    2 thoughts on “Court’s DMCA interpretation everything for YouTube

    1. Jonathan Bailey

      The YouTube/DMCA question is a powerful one that will impact a lot of hosts. To me, it seems as if YouTube is almost certainly protected by the DMCA but, as you point out, there are some very thorny issues here that could trip up that argument.

      A lot of it is going to come down to interpretation of the law and that can be a dangerous thing. Hopefully the judges involved in the case will be able to cut through the technology and the vague wording to come up with a ruling that will harm neither hosts nor copyright holders.

      There has to be a middle ground here somewhere…

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