IP Democracy: Viacom Introduces Trojan Horse into YouTube Lawsuit
Over the weekend, the blogosphere paid a lot of attention to a filing (PDF) made by Google in the $1 billion copyright infringement lawsuit brought by Viacom against the search giant and its YouTube affiliate. In answering an amended complaint filed by Viacom, Google said that Viacom's complaint threatens the very future of the Internet. "By seeking to make carriers and hosting providers liable for internet communications, Viacom's complaint threatens the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression," Google told the U.S. District Court for the Southern District of New York.
Congress intended for web site services and owners to be exempt from copyright infringement liability if they respond to notices of alleged infringement by copyright owners as provided for under the Digital Millennium Copyright Act (DMCA) and YouTube fufills Congress' vision for the DMCA, Google wrote.
The real news, however, isn't found in Google's legal filing, as valid as Google's argument might be. The latest bombshell in this litigation is buried in Viacom's amended complaint (PDF), a little-noted document filed on April 24, 2008, more than a year after Viacom filed its original complaint (PDF).
Viacom's amended complaint features a new charge or count against YouTube and Google, one that was not contained in the original complaint: YouTube itself is engaged in direct distribution of copyrighted materials. This new count could be crucial to the outcome of the case because, most experts agree, YouTube really is not responsible for its users' distribution of copyrighted material unless it fails to respond to a take-down request.
Viacom's initial complaint featured six counts of liability, all of which centered on the distribution activities of YouTube's users. These six counts, which are also in the amended complaint are, 1. Direct Copyright Infringement - Public Performance, 2. Direct Copyright Infringement - Public Display, 3. Direct Copyright Infringement, Reproduction, 4. Inducement of Copyright Infringement, 5. Contributory Copyright Infringement and 6. Vicarious Copyright Infringement.
But with this new count (Count IV - Direct Copyright Infringement, Distribution) Google's safe harbor arguments may not be as strong. Why? Because the DMCA only protects web services from infringement liabilities if "the transmission of the material was initiated by or at the direction of a person other than the service provider" and the storage of the content is transitory and intermediate.
The DMCA was intended to protect service providers from infringement that is a result of the conduct of customers and not the providers themselves. What Viacom is saying now, however, is that YouTube is directly involved in the distribution of the videos, that the site plays an active, not passive, part in the transmission of the material.
How? YouTube itself hosts the videos, YouTube itself plays the videos, YouTube itself sends out emails to people directing them to visit the site and watch the videos. In two new paragraphs (paras. 33 and 34) featured in the amended complaint but missing from the original complaint, Viacom puts it this way: In the revised complaint, which features a new paragraph (para. 32), Viacom puts it this way:
"Users can also download copies of Plaintiff's copyrighted works posted and maintained on YouTube's website using various readily available software applications and devices. These software applications and devices are produced by third-party entities to facilitate the distribution of copies from from the YouTube website to YouTube users. On information and belief, YouTube consciously tolerates or cooperates with such entities in order to permit YouTube users to play downloaded copies of infringing videos on their home computers, laptops, iPods or other devices; YouTube has the technical means to prevent the making or retention of such copies but has elected not to do so. On information and belief, YouTube also distributes infringing videos to third-party business partners that provide new "platforms" for viewing and/or copying the videos.
YouTube also allows any person to "embed" any video available in the YouTube library into another website (such as a blog, MySpace page, or any other page on the web where the user can post material). To do this, the user simply copies the "embed" code, which YouTube supplies for each video in its library and then pastes that code into the other website, where the embedded video will appear as a television-shaped picture with the YouTube logo prominently displayed and a triangular icon that any user can click to play the video. When a user clicks the play icon, the embeded video plays with the context of the host website, but it is actually YouTube, not the host site, that publicly performs the video by transmitting the streaming video content from YouTube's own servers to the viewers' computers.
YouTube also makes it possible for a user to share an embedded video by clicking the word "share" that is displayed with the video. After clicking "share," the user is taken to a location on YouTube's own website where there is a form for entering the email addresses of persons to share the video with. YouTube then sends an email to each person listed in that form with a link that takes the recipient to YouTube's own site to view the video. These embedded videos therefore act as a draw to attract users to YouTube.
Google, of course, can say that YouTube's users are responsible for embedding the videos, that YouTube's users enter the email addresses and that YouTube does not directly select the recipients of the materials and therefore it is still covered by the DMCA's safe harbor protections.
But there is no denying that Viacom has strengthened its legal hand by raising a fundamental question: at what point does YouTube stop serving as a mere passive conduit for its users and become a more active participant in the distribution of materials? Viacom's initial complaint blamed YouTube for helping its users violate the copyright laws through unauthorized distribution -- that complaint was a non-starter because the DMCA is very, very clear that YouTube can't be held responsible for what its users do.
It's another kettle of fish, however, to argue that YouTube is going beyond its DMCA-protected role as an automatic, technical facilitator of content publishing and is actively involved in the distribution of content. It's the best argument that Viacom has developed against YouTube so far.
Posted by Cynthia Brumfield on May 27, 2008 10:50 AM to IP Democracy