A recent article in the New York Times draws into focus the many differing interpretations and perspectives surrounding copyright law’s doctrine of Fair Use.
The article describes how three separate parties, a young musician, Google’s YouTube service and the Warner Music Group, became entangled over the use of the Christmas classic “Winter Wonderland”
The musician, Juliet Weybret, uploaded a video to YouTube that showed her performing the song. A few weeks later she was informed by YouTube that the video was being taken down because of objections by the Warner Music Group. Warner Music Group owns the copyright for Winter Wonderland and currently has no licensing agreement in place with Google.
Ms Weybret rightly felt that she was using the song in a noncommercial way and therefore was within the tenets of fair use. She was not gaining financially in any way by performing the song. It was basically a home video that she put on YouTube. The performance is not a money making venture, it doesn’t compete or impede Warner Music Group from earning income from the song. If you look at the performance itself, it is certainly fair use and does not infringe on the copyright in any way.
Warner Music Group, no doubt, feels the same way about the performance. However, when that performance is uploaded to YouTube and becomes part of the content of a multi-million dollar enterprise, then the notion of the performance (the video) as fair use is challenged. In Warner’s view, the video now contributes to the income YouTube makes from showing videos on the web. The use of the video by Google/YouTube is therefore not fair use.
Use of third party copyrights without permission has dogged YouTube since it became a major Internet presence. The company initially relied on Fair Use as well as the safe harbor provision of the DMCA as an argument for not removing video content. That decision created a substantial amount of push-back from copyright holders and a slew of lawsuits followed. Google now has a very high-tech filtering system that will automatically remove videos that use unlicensed content from YouTube.
From the NY Times article…
Referring to Ms. Weybret, Ben Sheffner, a copyright lawyer in Los Angeles who has worked on antipiracy at the 20th Century Fox movie studio, said, “From her persepctive it’s completely noncommercial because she’s not making a dime. But from another perspective it’s entirely commercial because Google is trying to make money off it”
Democratization of content
Democratization of information
Democratization of media
I’m noticing more and more use of the term “democratization” in articles about the media business.
The term is especially popular in discussions about social media. Social media, a relatively new term, has come to mean those Internet tools that facilitate the “wisdom of the crowd” model where meaning and value are derived through mass collaboration. Examples of social media sites would be such Web 2.0 stars as Wikipedia, Myspace, Facebook Digg, Flikr and Youtube.
Here’s an example from an article by Brian Solis, the owner of the Silicon Valley public relations firm FutureWorks PR.
Social Media is the democratization of content and the understanding of the role people play in the process of not only reading and disseminating information, but also how they share and create content for others to participate. It is the shift from a broadcast mechanism to a many-to-many model, rooted in a conversational format between authors and people.
Democratization, as I understood it, had to do with an authoritarian government moving towards a less oppressive, more open society. When applied to media or content, democratization has come to mean a move away from a perceived old and authoritarian media - the major TV networks, film studios, record companies and newspapers - towards a seemingly less oppressive, personally created environment provided by web technology where content is readily available, is free, and can be delivered based on ones likes and dislikes or even the likes and dislikes of one’s network of friends.
We are naturally attracted to words like democracy or democratization in the United States. It’s in our blood. We learn early on that democracy represents freedom. So when democracy is applied to terms like media and information, it’s easy to believe that this must be a good and positive thing.
My own feeling is that democratization can’t realistically be applied to information at all. By casting the media as authoritarian, the term can be used politically by those technologists who are trying to wrest power away from the established media towards their new Web 2.0 innovations.
Content is evaluated on quality, on how well it informs, entertains, teaches or illuminates truths. Using “popularity” as its measure is to greatly misrepresent it.
I enjoyed this blog post by Andrew Keen, author of last year’s controversial book The Cult of the Amateur. He points out in his blog post The end of the middle that democratization of media is in fact a falsehood and that, in reality, wealth and power are just being reallocated to new companies like Google, YouTube, Facebook etc.
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)
vs
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.
Conclusion
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.
Add England’s Football Association Premier League as the latest group to sue YouTube for violating copyright law.
Responding to the suit, Google’s general counsel, Kent Walker, said via email that “these suits simply misunderstand the (DMCA), which balances the rights of copyright holders against the need to protect Internet communications. As a result, they threaten the way people legitimately exchange information.”
It appears that defining YouTube as a “service provider” under DMCA regulations will be Google/YouTube’s main defense in these copyright infringement cases. But will a judge and jury accept that YouTube can be defined as a mere service provider under DMCA parameters? The DMCA (Digital Millennium Copyright Act), which was passed in 1998 under President Clinton, relieves ISPs or web hosts of liability if one of their hosted sites violates copyright law. Under DMCA, as long as the ISP immediately removes the illegal content and in some cases terminates the offending sites account, then the ISP is not liable for the actions of the hosted site.
When YouTube’s CEO Chad Hurley was asked about YouTube’s copyright violations by New Jersey Republican, Rep. Mike Ferguson at a May 10th hearing on Capitol Hill, Hurley defended the site’s practices as in compliance with the Digital Millennium Copyright Act.
I believe, as others do, that YouTube is misapplying the DMCA. Under their interpretation the burden is the copyright holders alone. The copyright holder has to maintain constant vigilance against infringement. While this may be true to some degree, YouTube is also basically saying here that they believe no law is broken as long as they receive no notice that a specific video is violating copyright. What if the copyright holder is unaware of the infringement and does not ask for removal, is there then no liability?
The truth is, copyright law is broken as soon as one party uses the copyrighted work of another without permission. Further, the law is broken, not at the moment the copyright holder becomes aware of the infringement, the law is broken the moment the work was used. Trying to wrap this simple statement of copyright law into a provision of the DMCA, complicating it with so called “take-down notices” and filtering software, though beneficial to YouTube, is, in my opinion, not going to fly at a copyright infringement trial.
Google’s Kent Walker interprets the DMCA to say that the exchange of information over the Internet and the need to “protect Internet communications” (not quite sure what that means?) is equally as important as upholding the rights of copyright holders. I don’t believe the DMCA was made law for this reason. It sought to relieve ISPs of liability if, say, one of their sites uploaded a hacked version of Microsoft Word. I don’t think the legislators in 1998 ever envisioned the DMCA being used to offer coverage for a company that freely broadcasts videos that they have no permission to offer.
The New York Times reports that Google is not interested in settling the copyright infringement suit brought by Viacom. They want a jury trial. Google is relying on the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA) which says essentially that Internet service providers, like ISPs or web hosts, are not liable for the copyrighted material uploaded by their subscribers as long as the service providers promptly remove the material once asked to do so by the copyright holder.
“This response ignores the most important fact of the suit, which is that YouTube does not qualify for safe harbor protection under the D.M.C.A.,” Viacom said. “It is obvious that YouTube has knowledge of infringing material on their site, and they are profiting from it.”
This story sparked over 80 comments on TechCrunch. One of those comments, by a poster name Raj, frames the issue very well.
“Ultimately, the even bigger issue that may arise from the ViaGoog lawsuit is whether DMCA may need to be re-visited to better reflect appropriate use of copyrighted material. The way it is written now, DMCA is being interpreted quite loosely by firms such as Google. DMCA was written to protect copyrighted material from inappropriate use but it seems in reality that firms which interpret it loosely are using it as a protection in a sense to get away with leveraging unconsented content for profit without properly compensating content owners for the material being used. The people who own/create content tend to get [angry] when others utilize their content without consent. Google has gone one step further by monetizing this material by displaying ads next to the video content in question. It will come down to which firm’s high priced lawyers can make a better case about DMCA compliance/non-compliance.”
I believe this case will come down to the court’s interpretation of DMCA and whether YouTube can successfully claim they are just a “service provider”.
Personally I think they are more than just a service provider. The Digital Millennium Copyright Act became law in 1998 under President Clinton. Back then it was intended to give ISPs some protection from liability if one of their hosted sites uploaded copyrighted content - like say - hacked versions of Microsoft Word.
But YouTube is more than a host - it tags all of its content, there are cross-referenced links to similar content. I can view a bootleg copy of a Rolling Stones performance and the site will show me tags for other similar bootleg Stones videos and it will then also offer linked recommendations to view similar bootlegs from Bob Marley for example. In other words, YouTube is actively engaged with its content, its not just sitting there as a mere host. There is a database in place that aggregates the content and offers users its results.
At some point in 2005 the folks at YouTube made a decision to allow the uploading of copyrighted material to the site. That decision led to the immense popularity of the site and an eventual $1 billion windfall. Now that decision will have its day in court.
I’ve been watching with great interest how YouTube handles accusations that it knowingly hosts and broadcasts copyrighted material. It now seems that Google, which acquired YouTube in November of 2006, is close to releasing technology that will help eliminate video uploads which violate intellectual property laws. Claim Your Content is Google’s name for filtering technology that will give content providers and publishers an easy way to alert YouTube that copyrighted material has been uploaded to its site.
But is a major showdown brewing? This March, Viacom sued Google and YouTube for $1 billion citing massive and intentional copyright infringement. Will this case ever go to court? Google has begun making revenue sharing deals with its major content contributors. If Google and Viacom can agree on revenue sharing terms then Viacom’s copyright infringment suit probably never goes to trial.
I don’t think there’s any question that YouTube built its vast community, and its brand, while knowingly broadcasting copyrighted material. Now, under Google’s dominion, the site is rapidly making attempts to satisfy copyright regulations.
Going forward with revenue sharing seems like the smartest way out of the copyright problem. However, will major media companies like Viacom seek compensation for past broadcasting of their content - broadcasting which made YouTube one of the top destinations on the Internet and that led Google to purchase the company for 1 billion dollars?
By October of 2006, before Google acquired it, an estimated 90 percent of the more than 100 million videos watched daily on YouTube violated copyright laws, according to Josh Bernoff of Forrester Research.
I’m sure Google/YouTube will work out revenue sharing with its major content providers going forward. The questions to me are:
- Will they compensate (or be forced, through the courts, to compensate) for that initial decision to broadcast copyrighted material in the first place?
- How will they compensate for that initial decision to broadcast copyrighted material?
- Can you create a business that essentially gives everyone else’s products away, and then sell it to a megacorp for $1 billion, and not pay some legal penalty?
Follow Up: This article from the Washington Post, published on March 24, 2007 Our Case Against YouTube outlines Viacom’s case against YouTube. It was written by Michael Fricklas, general council for Viacom.
