Tuesday, July 18, 2006

YouTube Goes Down the Tube (Not?)

As most the blogverse has noted, a certain Mr Tur, owner of Los Angeles News Service, is suing YouTube, the free and very popular video hosting site, for hosting a video he claims infringes his copyright.

While YouTube is perhaps best known for hosting user's own home vids (like the famous cat and Apple Powerbook video) it is also well known to host copyright material that fans or critics choose to upload - eg you can find the concluding segments of both the recent Dr Who and Green Wing series there. You can also find a middle ground of fan/user "mash ups" - songvids and the like - eg a very amusing parody of the end of that self same Dr Who series.

But YouTube is a host, not a P2P intermediary and so, oddly, it has the law on its side. The Digital Millennium Copyright Act provides that hosts who have no knowledge of hosting copyright infringing materail are immune from liability for it, as long as they respond to notices for take-down delivered in the style approved by the DMCA. (Furthermore, and even better, YouTube are protected from an action by a disgruntled user if they do so take down in good faith.) Nor is this just a USA oddity - the EC E Commerce Directive has a very similar regime for hosts in Art 14 of that instrument. (It's that provision that allows eBay in Europe, as previously discussed here, to get away with hosting trademark infringing goods so long as it removes them on notice, and expediently.)

These laws were drafted in the late 90s, before the P2P revolution but after the beginning of the dot.com boom, to protect ISPs , so as to encourage ISPs to collaborate with both the music industry and other such industry bodies in taking down pirate material on an NTD basis. Before they were introduced, following the late unlamented Prodigy case, ISPs were scared that if they touched illegal content, even to monitor or it or remove it, they immediately became liable for that content themselves.

But the amusing thing, now, in 2006, is that YouTube in many ways looks way more like (non legal) Napster than AOL or CompuServe. It's used extensively by a very large number of users to download pirate copies (c 100 million videos served per week, according to Technollama, of which a large number must be infringing), It's a free service, which makes its money on ads. And it has that cool , anti-the-man chic about it.

But because YouTube only hosts material provided by third parties, and doesn't put up its own materials (as MP3.com did), it's protected by the DMCA and ECD safe harbors. (Unless a US or European court can be convinced that it had "constructive" notice of illegality - ie it should have known what was going on or as the DMCA and ECD put it, was "aware of facts or circumstances from which infringing activity is apparent" - which is not altogether impossible but perhaps unlikely.) While the Napsters of this world fell foul of secondary copyright infringement, because their central database pointed at illegal copies hosted by other users. They didn't get the benefit of the DMCA because they weren't seen as a host who could respond to NTD notices and were aware of infringing activity. This seems, in retrospect, mildly curious.

As for a Grokster analysis - as Technollama also points out, it's hard to argue that YouTube "induced" copyright infringement. Their site unlike Grokster's is free of anti-copyright rhetoric and their ToS are impeccable (not that that helped Grokster!) - plus YouTube can calmly say the site was mainly set up to allow users to host their own amateur copyright material, and , I think, prove it.

So this one looks like a no-brainer.

So what if YouTube was serving, not videos, but pithy quips from popular novels, and acute chapters of contemporary academic works? Would the scenario be the same? What, in other words, if it was Google Library slightly differently conceived? Is this a way forward?

EDIT: Chris Marsden helpfully points out that You Tube merely streams video, and does not enable actual download - this of course makes it look far less like Napster/Grokster etc.

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