Min's Blog

Since I mentioned the “fight” between artists and Youtube in the last post, I want to take this opportunity to talk about the legality of Youtube. Since its creation, Youtube has been under fire from record labels, television and film producers, etc for showing copyrighted content. The fact that anyone can upload videos and anyone can watch them makes Youtube the perfect place to share copyrighted content, such as music videos, live performances and movies. The record companies, film producers and artist, etc thus worry about the impact it will have on their market as everyone can just watch their work for free.

One representative case is the pending case against Viacom, which filed a copyright infringement lawsuit on March 13, 2007  in the Southern District of New York demanding as much as $1 billion. Nevertheless, Youtube has very strong reasons (as a frequent Youtube user myself, I enjoy the expediency it brings and maybe biased on this issue). Youtube is a platform on which its users can upload videos, not a website that creates its own videos, so it is acting as a passive intermediary. It’s an innovative technology that everyone can access to exchange ideas, and a large fraction of the videos are purely self-made and innocuous. I think that Youtube should not be held responsible for what its users put because: 1. it does not know what the users upload. 2. it’s not feasible to “censor” every video, as it will be enormously time and money consuming. 3. it’s just an intermediary, and does not have the social responsibility to ensure the copyright owners’ interest. These issues are recognized and acknowledged by the DMCA(Digital Millennium Copyright Act), which limits the liability that internet intermediaries have to take when their users commit copyright infringement by uploading copyrighted work.  The court has the reputation to favor internet companies in a effort to preserve and propel creativity in the society, and it ruled that Viacom cannot seek punitive damages against Youtube; however, statutory damages remain unresolved. In order to eventually win this “marathon” case, Youtube needs to prove that it fulfills  the “safe harbor” provisions charted in DMCA. These provisions are not the emphasis here, since I am more interested about how the law tries to curb copyright infringement on websites like Youtube, as it is the ultimate goal.

The DMCA mandates Youtube to implement the notice and takedown system. It’s a system in which the copyright owners need to notice service providers, in this case Youtube, about copyright infringing activities, and Youtube has to to expeditiously remove the videos followed by sending the users notifications. Youtube’s immediate removal of videos of after Prince filed a request (even though it’s unreasonable like I said before), shows that it has an effective takedown system. It is not uncommon to see red tagline saying that the video is no longer available due to copyright issues, in place of the original video. In addition, Youtube creates a page informing users what kind of work does not infringe copyright.

Youtube has made good moves to accommodate the copyright owners’ requests, but is this notice and take-down system mandated by law really that effective? A large number of videos are uploaded around the world everyday, so it will take the copyright owners a lot of time and effort to search for potentially infringing materials. They need to wait for the “criminal” to jump out. According to Section 512(c)(3)(A)(iv) of the DMCA, sufficient information to identify the copyrighted works is needed in order to have a video removed. But how “sufficient” should that be? The wording of the law is very broad and elastic, which may decrease the accuracy of those notices. Most importantly, this system will have a chilling effect on its users. The users will be discouraged from uploading their materials in fear of getting implicated in a lawsuit. As a large number of common users do not know what counts as fair use, they will be deterred from uploading videos that are in fact not infringing.

There is also a technical flaw to the system. Ironically, I found a video on Youtube titled “How to get around copyright issues on Youtube!!” Even if Youtube (maybe they already did) find out about the video, they cannot take it down, as it is self-made and did not use any copyrighted work:

http://www.youtube.com/watch?v=3S7mAjhutZc

The guy (who unfortunately swears quite a lot) tried on the video he uploaded that was already made unavailable at some record label’s request. He clicked on “resolve copyright”, and typed “I am in no way associated with the content of this video, and in no form am I trying to take credit for the content shown” into the dispute claim form, and then BANG! he can watch his “lost” video live. By clicking several buttons and copy-and-paste, he is able to retrieve blocked content.

In short, my take on the whole Youtube issue is that it should not be responsible for the content its users upload, and that the notice and take-down system required by DMCA has many drawbacks need to be fixed.

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