Into the Arcana of Copyright Law

The WSJ (sub req’d) has a long article on digital copyright law and the Viacom-Google litigation. If you’re “into” this dispute it’s worth a read:

Since the video-copyright spat intensified last year, YouTube has claimed it qualifies for protection from liability because it removes clips from its site when copyright holders ask. Such a procedure is outlined in the Digital Millennium Copyright Act of 1998, a landmark law that updated intellectual-property rights for the Internet and laid the groundwork for the widespread hosting and searching of content originating from ordinary users. The DMCA also contained important so-called safe-harbor clauses, provisions designed to protect access providers, search engines, Web-hosting services and others from liability for copyright claims if they met several conditions.

Some lawyers say court decisions may have broad ramifications. “The DMCA safe harbor covers a lot of businesses, and it’s hard to see how you could go after YouTube without threatening all of the others,” says Fred von Lohmann, senior attorney at the Electronic Frontier Foundation in San Francisco.

And listen to the TW gloating:

“Time is up for YouTube,” said Time Warner Inc. General Counsel Paul Cappuccio. “It’s no longer permissible for them to have unauthorized copyrighted material on there.”

Basically it appears the case will come down to what YouTube knew and when and what they did or failed to do in response to that knowledge. Reasonableness (a core legal and common sense principle also comes into play.) As I said yesterday:

Though not an IP lawyer this case strikes me as analogous to the trademark litigation that Google endured around SEM. At issue on one level is the reasonableness and timeliness of Google’s efforts to filter and prevent violations or quickly cure after being notified.

Here’s the apparent crux of Google’s intended defense. Again from the WSJ article:

Google lawyers contend that there is little ambiguity in the safe-harbor clauses’ protections for YouTube. “It is a relatively clear statute, and Web hosts in general have been confident their activity is not something that will subject them to copyright liability as long as they comply with the notice and takedown procedures outlined in the act,” said Alexander Macgillivray, a Google associate general counsel.

It’s quite possible that if this case could bring about a change in the law, either through appeals and precedent or via Congressional action.


Danny Sullivan has done a nice roundup this morning of all the coverage.


2 Responses to “Into the Arcana of Copyright Law”

  1. media blog » Blog Archive » Viacom, Google suit important to all web publishers Says:

    […] Greg Sterling has a post that pulls key quotes from a WSJ on the Viacom vs. Google/YouTube lawsuit. […]

  2. Lucas Says:

    As I’ve warned before, YouTube can’t hide behind the DMCA because it’s violating the spirit of the DMCA. What YouTube does is abuse of the law. Here’s part of what I wrote in the comments of an entry about this dispute even before Viacom actually sued:

    “YouTube doesn’t live with its head in the sand. Its executives are well aware that copyrighted material is available on the site, and they’ve done nothing to take it down unless asked to by the real owner. That’s not going to sit well in the eyes of a judge. And there will be a judge one day. YouTube needs to show that its taken all reasonable steps to remove copyrighted material even before being asked to. That might redeem it during the looming court battle.”

    And I’ve suggested ways YouTube can demonstrate its acting reasonably and responsibly in response to complaints in my latest post here. They include:

    – Use of filtering technology already being employed to stop porn from being posted to stop copyrighted material from re-appearing.

    – Alternative ways for content providers to submit clips to YouTube for search without having to actually post their content on the site’s servers.

    Content providers might be willing to settle instead of sue if YouTube is willing to take some action. Or, the Google boys can risk it all in a courtroom, where they’ll ultimately lose.

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