IP Democracy: Viacom's GC: DMCA Doesn't Protect YouTube

Viacom is doing a major tap-dance in its copyright infringement litigation against YouTube. As I pointed out earlier, the entertainment giant’s lawsuit against YouTube (which is owned by search giant Google), side-steps direct reference to the DMCA. I found this to be a glaring defect in Viacom’s complaint, although Mike Arrington told me in a comment that I was misinformed, that Viacom had no obligation to preemptively raise what no doubt will be YouTube’s defense.

The Digital Millennium Copyright Act (DMCA) has a safe harbor provision that insulates Internet companies (although as discussed below, exactly who the DMCA insulates is a question mark) from copyright infringement liabilities if upon request of the rights holders, the company removes the allegedly infringing material. YouTube has presumably met this requirement. YouTube maintains that it honors all such take-down requests and therefore Viacom’s suit has no legs.

But Viacom kicked up the dust nonetheless, accusing YouTube of knowing that it has infringing material on its site (which is a violation of the law) and from refraining to actively scan uploaded content to see if it contains copyrighted material (the law does not require this.) In an op-ed piece in today’s Washington Post, Viacom’s General Counsel Michael Fricklas defends the DMCA but says it does not apply to YouTube.

The DMCA strikes a logical compromise among competing interests and is one of many sound policies that have allowed the Web to develop and flourish. Under the act, Web hosting companies have been able to develop with no obligation to monitor every file loaded and downloaded by their users. E-mail operators have been able to safely maintain their facilities without reading every message that passes through their systems. File storage Web sites allow users to back up their hard drives without needing to patrol every file and without fear of copyright liability.

Fricklas’ arguments about how the DMCA doesn’t apply to YouTube are not fully clear to me from the published piece — as is often the case, the Post may have edited down Fricklas’ submission so that some of the underlying logic was edited out. Nonetheless, here’s what Fricklas seems to be saying:

1. The DMCA Applies Only to “Passive” Internet Services: “It [YouTube] is far more than the kind of passive Web host or e-mail service the DMCA protects,” Fricklas writes.

2. The DMCA Doesn’t Apply to Companies that Reap Financial Benefits from the Copyrighted Content:“The [safe harbor] defense is not available to someone who ‘derives a financial benefit’ from copyrighted material he stores if he has the ‘right and ability to control’ it.”

3. YouTube Must Be Aware of the Infringing Content Because Everybody Else Is: “Does YouTube have ‘knowledge’ of copyrighted material on its site? Does it have the ‘right and ability to control’ the content? Yes and yes. If the public knows what’s there, then YouTube’s management surely does,” Fricklas says.

4. The Burden of Finding Infringing Content Shouldn’t Rest on Owners:“Is it fair to burden YouTube with finding content on its site that infringes others’ copyright? Putting the burden on the owners of creative works would require every copyright owner, big and small, to patrol the Web continually on an ever-burgeoning number of sites. That’s hardly a workable or equitable solution.”

What Fricklas has done, in essence, is put in op-ed form Viacom’s reply to YouTube’s response even before YouTube has responded to Viacom’s complaint — or filed a motion to dismiss or whatever it is YouTube is going to do. (Confused? Let me put it another way: Viacom is anticipating what Google will say and this op-ed piece seems to be Viacom’s counterarguments.).

From where I sit, Viacom has raised some interesting questions, at last. It’s never been very clear if the DMCA applies to Internet companies such as YouTube or, I might add, iFilm or Addicting Clips or the other YouTube-esque sites owned by Viacom. The DMCA was intended to apply to ISPs such as dial-up service providers, although the law on its face doesn’t say this, nor is there a lot of back-up for this “passive” provider limitation.

But, Viacom is way off base when it argues that because we all know, YouTube must also know about the infringing content. That’s almost laughable — which is not to say a judge won’t allow discovery on this question. I’m never quite sure whether a film or TV clip is infringing or not, and I follow this stuff far more closely than the average person.

Finally, there is the more difficult issue of whether the burden of discovering infringing content should fall on the rightsholder. As impossible as it is for a rightsholder to locate infringing content on the web, it’s even more difficult for website owners to be aware of every little scrap of copyrighted content that exists in the world and be on the look-out for it.

In any event, Mike Arrington said in his comment to me that YouTube would raise the DMCA safe harbor as a defense and that Viacom would then argue that the DMCA doesn’t apply to YouTube. Based on this op-ed piece, it looks like he was absolutely right.

But I still think Viacom made its work harder by not grabbing the bull by the horns at the outset and explaining from the get-go how the DMCA doesn’t apply to YouTube. Obviously, Viacom might be thinking this too. Otherwise why is the company going public, tipping its legal hand, so to speak, in a major newspaper well before it needs to?

Posted by Cynthia Brumfield on March 24, 2007 11:50 AM to IP Democracy