Shoot First, Apologize Never, Then Offer a Pop Quiz With a Get Out of Jail Free Card

YouTube seems to be in a position similar to Baidu. Facing a potential appeal and negative campaign in terms of its copyright policy, YouTube is now turning its policy to making violators go back to school. (Yes, back to school.)

YouTube has a three strikes and you’re out policy regarding DMCA notices. Following the third strike, a user is suspended. (Circumventing this suspension can be as simple as opening a new account.) However, YouTube is now offering a new method to remove strikes – take a copyright class and pass a test. (YouTube insists that these users must then maintain a clean record.)



YouTube is also trying to self-regulate, pledging to build on its copyright policy including a 24 hour takedown policy, improving responses and system for DMCA takedown requests and improve its anti-piracy review.

A campaign by YouTube to show its improvements in assisting and taking seriously copyright complaints….is YouTube hedging its bets about its chances of reversal in the Viacom case? (Previous coverage of YouTube v. Viacom can be found here.)

Maybe the decision involving parent company Google in the book settlement case has YouTube a little more concerned. (That is a blog post for another day.)

There is an irony here. Clearly, YouTube knew that its site attracts copyright infringement. Viacom would argue that YouTube encouraged and profited from copyright infringement. Now, YouTube will be providing a course on copyright.
Now that YouTube is clearly the market leader in video content posting on the web and the website that most people would quickly go to first if looking for a video, YouTube seems to now want to not only clean up its image. A new startup for video web content would likely have to follow the YouTube model to allow significant amounts of infringing material to be posted to direct traffic to its site. Now YouTube can try the corporate responsibility routine and keep competitors at bay with all things – copyright.

YouTube, like Baidu maintains that the content that appears on its website is the uploader’s responsibility.

What effect do you think the school will have?

Is YouTube similar to Baidu trying to self-regulate fearing government intervention? Is it too late? Will the government step in? What happens (either way) in the Viacom case may determine if (or when) the government takes action?

UFC Grapples with Justin.tv over Live-Streaming of Events

Zuffa, Inc., the parent company of Ultimate Fighting Championship has filed a lawsuit in the District Court of Nevada for copyright infringement against Justin.tv. Justin.tv is a website that allows for the streaming of live video through its web portal.

UFC alleges that its pay-per view events are being broadcast on Justin.tv. UFC hired third party vendors to send petitions to take down over 200 video feeds of the October 23, 2010 pay-per view event UFC 121. According to news reports, UFC claims that over 50,000 watched illegal streaming video of UFC 121.

Justin.tv has a terms of use which includes DMCA takedown notices. UFC alleges that Justin.tv’s response has been inadequate. According to a press relase on the UFC website, Zuffa contacted Justin.tv several times over almost a two-year span in attempts to prevent illegal uploading.

It seems likely that Justin.tv is likely to rely on the DMCA safe-harbor provision similar to the arguments made by YouTube in the Viacom lawsuit.

Viacom v. YouTube, Part III - Limitations of Liability

The final part of the Viacom v. YouTube trilogy focuses on the DMCA limitations of liability in Section 512.

A copyright includes a certain bundle of exclusive rights such as distribution, reproduction, public display, and the right to make derivative works. See 17 U.S.C. § 106. Under the DMCA, Section 512 provides the limitations for liability for online materials specifically for online service providers.

Under the statutory scheme of Section 512, there are several subsections for different liabilities. For example, 512(a) is a safe harbor for “infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections…” This is followed by specific conditions:

1. the transmission of the material was initiated by or at the direction of a person other than the service provider;
2. the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
3. the service provider does not select the recipients of the material except as an automatic response to the request of another person;
4. no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
5. the material is transmitted through the system or network without modification its content.

Section 512 (b) is for storage for system caching with specific conditions and 512 (d) is for infringement by reason of reference or linking to an online location with infringing materials or activity.

Weekly Wednesday Wrapup - MORE THAN MEETS THE EYE

According to Wired, Paramount Pictures, the production company behind the Transformers movie franchise, is claiming that a video showing people filming footage for the Transformers 3 movie posted on YouTube constitutes copyright infringement. The video in question is 3 minutes long and shows the movie crew standing around, followed by a few seconds of a hydraulic lift shooting a car 100 feet down an alley. You can see a snippet of the original YouTube video here.

So far, Paramount has issued a DMCA take down notice prompting YouTube to the video. Ben Brown, the poster of the YouTube video, has filed a counter-notice contesting Paramount’s claims.

Is the posting of this YouTube video copyright infringement or is Paramount impermissibly using copyright law to shut down a legitimate video?

It depends.

In order to have a copyright, you must have a work fixed in a tangible medium. Paramount cannot claim a copyright in the footage until it is filmed. Thus, if Ben Brown shot his video at the same time that Paramount was shooting its scene, fixation could have arguably occurred simultaneously, thus both Paramount and Ben Brown own copyrights in their respective footage. However, if Paramount created copyrightable story boards for the action sequences, unauthorized filming and posting of the live action scene could be considered an infringing derivative work of the story boards.

Even assuming Paramount has a valid copyright claim, there is still a defense of de minimis copying. The footage of the crew preparing for filming is probably not part of Paramount’s shoot (unless it is being filmed by Paramount for “making of” features for the DVD release) and the actual action sequence that was filmed was only a few seconds long. In the context of the amount of footage Paramount will film for the movie (hundreds of hours) or even the final product (approximately two hours), Ben Brown’s snippet could be considered de minimis copying.

It could further be argued that Ben Brown’s YouTube video would not replace the market for the original feature length film. However, Ben Brown’s YouTube video could impact the sale of DVDs, which often include DVD extras such as deleted scenes and “making of” features.



Oren Gelber is an associate at Collen IP. She is guest posting while Tom is in Boston for INTA 2010.

Weekly Wednesday Wrapup - May 12, 2010

• FIRST SALE FRENZY: On June 7, 2010 the Ninth Circuit will hear appeals in UMG Recordings Inc. v. Augusto, a first sale case involving promotional sound recordings sold on Ebay; Vernor v. Autodesk, Inc., a first sale case involving software; and MDY Indus. V. Blizzard Entertainment, a first sale case involving software code in World of Warcraft video game.

Not one oral hearing on first sale doctrine but 3 – in the same day in the Ninth Circuit.


• Google filed for declaratory judgment claiming DMCA protection claiming that Google timely removed and/or disabled links to Plaintiff’s DMCA takedown notice where Plaintiff, a record company alleged and filed a previous suit for contributory and vicarious copyright infringement when RapidShare links appeared in internet searches on Google and Microsoft search engines. Plaintiff previously contested that Google and Microsoft responded to the DMCA takedown letter. The case raises issues about responses to DMCA takedown notices as well as the boundaries of contributory and vicarious copyright infringement.


• In a case initially filed in the Southern District of New York and recently transferred to Central District of California, over 40 photographers, owners of photography copyrights and the organization that operates the San Diego Zoo are seeking more than $11 million in damages from the fast-food chain Taco Bell for copyright infringement.

The Plaintiffs claim that 4 ecology-themed DVDs distributed along with Taco Bell’s “Kid’s Meal” menu items contained over 100 images that were used without authorization or compensation to the copyright owners. The subject images were licensed to SNAP TV Inc. by the wildlife-specialty stock photo agency Minden Pictures. The Complaint alleges that Minden has been unable to get SNAP TV to pay for its license and thus SNAP TV’s use of the images and by extension Taco Bell’s distribution of over 2 million DVDs containing these images constitutes copyright infringement.

Plaintiffs are seeking monetary damages as well as Taco Bell’s profits attributable to the alleged infringement. However, as the Complaint points out, these DVDs are promotional items which were distributed along with Taco Bell’s “Kid’s Meals” menu items. If the DVDs were given away for free, as is done with most Kid’s Meals at fast food chains, then there is not basis for computing profits attributable to their distribution—because there are none. Should they prevail upon their copyright claims, Plaintiffs may be better served by seeking statutory damages.