Viacom: DMCA No Defense for YouTube

In an editorial for the Washington Post this morning, Viacom general counsel Michael Fricklas defended what observers are remarking may be an unpopular position. Fricklas argued that YouTube cannot effectively shield itself from prosecution using the "safe harbor" provision of the Digital Millennium Copyright Act, saying there's no way YouTube's millions of customers can be aware that copyright infringement takes place on the site while the company itself remains oblivious.

"YouTube's own terms of use give it clear rights," Fricklas writes, "notably the right to take anything down. YouTube actively monitors its content. For example, its managers remove pornography and hate content and, as was recently reported, claim they can detect and remove 'spam.' Without knowledge and control, how could YouTube create 'channels' and 'featured videos' sections on its site? YouTube has even offered to find infringing content for copyright owners - but only if they do a licensing deal first."

Viacom's point of contention is directly analogous to the weakness that drove down the Grokster P2P service in its battle with movie studios. Two years ago, the US Supreme Court made a landmark decision in the studios' favor, citing the fact that Grokster distributed its software not only knowing it would be used for infringement purposes, but encouraging it.

"The record is replete with evidence that from the moment Grokster and StreamCast began to distribute their free software," the high court wrote, "each one clearly voiced the objective that recipients use it to download copyrighted works, and each took active steps to encourage infringement."

Grokster's defense had been that it provides no centralized service, so it cannot actively monitor the files that users choose to "share" with one another. The DMCA shields companies from some liability for the activities of its users, when the service is not a direct participant. But YouTube is not a P2P service; its database is centralized, and centrally administered.

Another member of Viacom's team of counselors, wrote an editorial for the Los Angeles Times published last Saturday in which he also argued that YouTube's knowledge of users' actions will inevitably tip the scale in his client's favor. But Douglas Lichtman was also quite cautious in determining what the appropriate remedy should be, which he believes should allow YouTube to continue with its principal business: letting users share videos that they themselves produce.

"Exercising care is not a Herculean task," Lichtman writes. "YouTube, for instance, has enormous information about what search terms its users enter and what tags posters submit when they turn in a new video. That could be combined with public data on characters, names and movie titles to easily identify videos that might need to be reviewed by a copyright lawyer or run through an automated system that compares suspicious clips with known copyrighted work. Perfection is not required; cost-effective filtering technologies are."

Perhaps YouTube's remedial action may not be Herculean, but the work Viacom has ahead of it to garner public support isn't exactly a walk in the park.

In a New York Times editorial on March 18, the celebrated Stanford University law professor Dr. Lawrence Lessig argued that Viacom's case is based upon a kind of extension of copyright law to address technology, but without the actual legal code to substantiate such an extension. In other words, no one has actually legislated the terms under which the studios won in MGM v. Grokster, Dr. Lessig argues; and while Congress would be the party responsible for filling in the legal gaps, it may not be all that interested in creating unpopular legislation right about now.

"Drawing upon common law-like power, the [Supreme] Court expanded the Copyright Act in the Grokster case to cover a form of liability it had never before recognized in the context of copyright - the wrong of providing technology that induces copyright infringement," Dr. Lessig wrote.

But an intellectual property attorney writing in the Richmond Times-Dispatch this morning brings up an heretofore unconsidered possibility, one which Web video users may want to be cautious of: the ominous specter of what happens if Viacom loses its case? Since the studios will be apt to punish someone for copyright infringement, John Farmer argues, it could take its grievances out upon YouTube's users.

"While the court will decide whether the Digital Millennium Copyright Act shields YouTube from liability for its users' actions," Farmer writes, "there's no question some YouTube users are committing copyright infringement...I can think of many reasons why Viacom and its competitors would sue uploaders of copyrighted material."

If Viacom loses, dwindling viewership of its television services - including MTV Networks - might leave it with no option, as Farmer continues: "Viacom needs to teach users of video-sharing sites that such copyright infringement is wrong before everyone accepts it as right (perhaps it's too late for that). YouTube and its ilk could reduce the viewership of ad-driven TV."