It’s the talk of the Internet and a veritable clash of the titans. Viacom, the company that owns several cable television channels, including Comedy Central, sued YouTube and Google for one billion dollars earlier this year and the Internet has not been able to stop talking about it since.
But even though it has gotten a great deal of attention as a clash between new and old media and for its polarizing effect among those on the Internet, it also raises some potent legal issues that could drastically affect bloggers, the tools that they use and the future of the Internet itself.
Simply put, if YouTube and sites like it are the future of the Internet, then this case could have a great deal of impact in determining the future direction of the Web and the people who post to it.
Viacom is an American media conglomerate that owns several cable or satellite networks including MTV, Comedy Central and BET among others. YouTube, as most already know, is a video sharing site recently purchased by Google that enables users to post clips from their computer to the Internet for embedding on other Web sites.
According to various sources, the two parties were working on hammering out an agreement in late 2006. However, things apparently turned sour some time around February 2007 as Viacom demanded the takedown over over 100,000 of its clips off of YouTube. Then, later in the month, Viacom filed suit in New York federal court seeking one billion dollars in damages.
In their original complaint, Viacom says that “YouTube has deliberately chosen not to take reasonable precautions to deter the rampant infringement on it site. It goes on to say that YouTube “directly profits” from the infringement and “has decided to shift the burden entirely onto copyright holders to monitor the YouTube site on a daily or hourly basis.”
In April, YouTube filed an answer denying all of Viacom’s claims and offering several defenses, most prominently the DMCA safe harbor protections.
However, it is those DMCA protections that are at the heart of this case and will likely determine not just the outcome of this one lawsuit, but the future of many of the Web services we have all come to know and love.
Where Things Are
Right now the two parties are skirmishing back and forth in motions. However, for the most part, the case is at a standstill as both parties have requested jury trials and seem to be digging in for a long fight. According to a recent ruling, depositions and discovery are due by the end of 2008 and, some time after that, the trial can begin if needed.
What’s At Stake
The Digital Millennium Copyright Act (DMCA), which was passed in 1998, offered legal protection to Web hosts so long as they followed certain protocols for removing infringing material once notified. YouTube follows those protocols very closely and even goes above and beyond the specific requirements of the law, including offering a Content Verification Program to speed up the takedown process.
However, when the DMCA was written and passed, there was no site like YouTube on the Web. It was not even envisioned in the writing of the law. As such, YouTube does not neatly fit within the bounds of what the DMCA defined as an online service provider. Not only does it derive some profit from the infringement, but it also manipulates the content, by formatting it for the Web, and has been, at least allegedly, used for very widespread copyright infringement.
The problem is that YouTube is not the only site that these elements describe. As the Web has evolved, more and more services have blurred the definitions as to what is a host. Not only are there other video sharing sites, but there are all kinds of file sharing, mashup and widget sites that don’t fit the 1998 definition of what is a host.
If Viacom wins this case and these sites are no longer protected by safe harbor, then many of these sites could be forced to shut down. Others will be forced to employ content filtering systems to prevent copyright infringement and still others may have to limit their functionality.
This could have drastic implications on the Web and could even put some bloggers out of business, especially those who rely upon these new technologies. Also, since many bloggers themselves accept stories, posts and photographs from other sources, this case could shed some light on their liability in the event that they unwittingly post infringing material on their site.
In short, this case could cause a tectonic shift all across the Internet that could have a very strong impact on how bloggers get their material and what they do with it.
What it Hinges On
What makes this case so open is that it hinges on what a judge rules the intent of the DMCA was and whether or not it was supposed to include sites such as YouTube. The answer is not very clear and it is open to interpretation.
There are many variables at play here, some of which were mentioned above. For example, Section 512 does stipulate that a host can not receive “financial benefit directly attributable to the infringing activity” and receive safe harbor protection and many believe YouTube does receive such benefit and may be disqualified.
On the other hand, other hosts, especially free Web hosts that display advertising along side hosted content, also receive such benefit and have generally been found to be protected. However, those sites have seen significantly less infringement than YouTube and, many would argue, that YouTube has built its empire on the pirated content posted there, unlike free Web hosts that provide a service less likely to be abused.
Another interesting point that this case may hinge upon is whether or not YouTube is guilty of inducing copyright infringement. If it is, it may be held liable for secondary copyright infringement as per the Grokster case. What exactly defines inducement is unclear but it hinges in no small part upon how a service is promoted and what need it is designed to fill.
If it is found that it was created to fill an infringing need or otherwise induced copyright infringement, then it may be found guilty of copyright infringement and similar services may have to take a closer look at their marketing and the uses of their tools.
There are a lot of potential problems for YouTube in this case and, though they seem to be working hard to avoid the obvious pitfalls. A case like this hasn’t been tried and there is still a great deal of uncertainty about which way it will go.
What is Likely to Happen
Without a crystal ball, it is impossible to really predict the outcome of this case. However, it is likely that this case will never see a jury trial.
Most likely, as the case moves forward, the judge will offer rulings on some of the key aspects and may determine the validity of some of YouTube’s defenses before jury selection ever begins. If that’s the case, it would quickly become clear who has the upper hand and it seems unlikely that the side at the disadvantage would want to go to trial.
Though I don’t think this case is a bargaining chip and believe that both parties are very interested in conclusively resolving these issues, neither side is going to waste money if defeat is clearly in the cards. The exception would be if the rulings were mixed in nature and/or left the door open for an easy appeal.
Still, don’t hold your breath for a resolution, with discovery set so far into the future, it’s unlikely that we’ll see any major movement on this case for many months.
Finally, no matter what happens with this case, expect lawmakers to revisit this issue and amend the DMCA to add extra clarification in this area. There is simply too much money at stake for lawmakers to consider leaving these issues up to judges, who occasionally make wild and unpredictable decisions in copyright cases.
Besides, with the lobbying power of both the media and Internet companies pushing for greater clarity, it is only a matter of time before the battle is again fought in the halls of Congress.
When the Grokster case went before the Supreme Court, many felt that it would forever alter the landscape of the Internet and that the clarity it would provide would forever change the Web. Unfortunately, the ruling did little to clarify or change anything.
Combine the confusion from the Grokster ruling with how dated the DMCA is already starting to look and you have a recipe for a very confusing legal gray area.
The hope is that this case, no matter how it is decided, will finally answer some of these difficult questions.
Because, though bad laws can stifle progress, ambiguity is even more deadly. All of the legal uncertainty swirling in this area is doing more to chill development than any law could. Though it is true that copyright law is written intentionally vague and is intended to be decided on a case-by-case basis, that flexibility, as necessary as it is in some areas, is chilling progress in many areas.
Hopefully this case, no matter who wins, will be a boon for progress on the Web. Though we would all prefer a good balance be reached between rightsholders, users and hosts, almost any understanding, even a bad one, would be preferable to the uncertainty we have today.
After all, if we have a bad starting point, at least we have a starting point and can work from there. Copyright law is known for drawing lines in the sand on these matters, but those lines are notoriously flexible and have been frequently moved throughout history.
Unfortunately, much of that movement has been very one-sided in favor of rights holders. However, this case offers a great chance to turn the tide at least a little bit and perhaps lead the way to a better balance in the future.