Monday, June 25, 2007


.. should probably be the new name for this blog. But it is an endlessly fascinating time for intermediary lawyers...

Anyway just a note that people seem to think that Google has won the first round, not against Viacom itself but in Tur v YouTube, an earlier launched case. Robert Tur is the photojournalist who sued YouTube in July when his videos of the L.A. riots and O.J. Simpson's slow-speed chase appeared on the video-sharing Web site.

Now the judge in the lawsuit has denied both sides' motions for summary judgment, ruling that more evidence is necessary to determine whether Google's video-sharing giant is shielded from liability by the Digital Millennium Copyright Act, s 512(C),

As this is the point I've been debating through three papers in two different countries over the last mont or so, I'm rather keen to see this one fully explored myself; can't wait in fact.

Tur's claim can be found here,
As I myself have previously discussed, his claim rests on the claim that YouTube does not qualify for DMCA safe-harbor protection because it derives a direct financial benefit by displaying advertising opposite his videos. Under s 512, the claim to immunity is lost if "direct financial benefit" is made. But there is a strong argument from the policy papers that preceded the DMCA, that "direct" benefit was not intended to apply to the kind of indirect profit YT may make by selling ads on its site next to videos which are both downloaded and uploaded for free. Furthermore, there are rumours that YT in fact makes no money at all at present, and therefore "financial benefit" may in reality be hard to prove.

Judge Cooper issued an order for further discovery, saying that she needed more factual evidence to establish if there was a case to answer. "There is insufficient evidence regarding YouTube's knowledge and ability to exercise control over the infringing activity on its site .. There is clearly a significant amount of maintenance and management that YouTube exerts over its Web site, but the nature and extent of that management is unclear."

Cooper also wants more information about YouTube's internal screening procedures.

"YouTube also asserts that while it is able to remove clips once they have been uploaded and flagged as infringing, its system does not have the technical capabilities needed to detect and prescreen allegedly infringing videotapes," Cooper wrote. "However, there is insufficient evidence before the Court concerning the process undertaken by YouTube from the time a user submits a video clip to the point of display on the YouTube Web site."

These quotes highlight that YT's liability (or non-immunity) is dependent not just on whether it makes "financial benefit" but also on whether it has the "right and ability" to control the infringing files. This may depend on a number of factors, including YT's terms and conditions, its policies, and crucially what filtering, both pre-and post-upload it employs. As previously documented here, YT has been developing the ability to pre-filter infringing files using code called ClaimYourContent. Until that is ready, goes their story, they not not have the "ability" required by the legal test in 512(c). Indeed, even when CYC is ready, it may still require collaboration from rightsholders before individual infringing clips or videoes can be "tagged" and recognised.

Again, watch this space!