This is a follow up to my post of earlier this week which covered YouTube's reasoning behind creating their new Copyright School. This post addresses the content of YouTube's lesson.
While the cartoon has some serious information in it, there seems to be a level of Simpson-esque social criticism that many may not take the message seriously. I reserved some level of judgment on the YouTube Copyright School idea but this is a farce. I guess you cannot expect much from a company whose popularity has been based on posting of videos without the copyright owner’s authority.
This Copyright School video seems to be a significant acknowledgement that YouTube is a platform for copyright infringement. (Don’t get me wrong there are postings to YouTube that do not infringe on copyrights; however, its previous success was based on infringing works. The successes and number of views and hits for “It’s Friday” would not have developed without users flocking to the site to see clips from “The Daily Show,” “The Colbert Report,” or numerous other unauthorized postings protected by copyright.).
While YouTube seems to be evolving, more and more often YouTube seems much more like Napster. Knowing that YouTube plays some type of active role in screening its videos makes it worse. A copyright school video like this makes you wonder if YouTube should not have to view the Napster and Grokster decisions and be schooled on contributory and vicarious copyright infringement too.
Showing posts with label Grokster. Show all posts
Showing posts with label Grokster. Show all posts
Friday, April 29, 2011
Wednesday, December 15, 2010
Viacom Appeals
As widely expected, Viacom has appealed the June 2010 district court ruling in Viacom v. YouTube to the Second Circuit. (I previously discussed the district court's decision granting summary judgment to YouTube in a 3 part post: Part I, Part II, Part III.) Viacom has a full text of the appeal as filed on their website.
Interestingly, Viacom has primarily focused on the factual findings of the district court in granting summary judgment for YouTube as an internet service provider under Section 512(c). Section 512(c) provides a defense to copyright infringement for certain activities carried out by internet service providers. (Further explanation available here.)
Viacom has stated three reasons why Section 512(c) should not apply to YouTube:
For the first 2 reasons set forth by Viacom, it would seem heavily reliant on Grokster and general principles from the case. Based on the district court decision, Viacom would argue a couple of small changes and Grokster would not have been guilty of infringement. (This may be true.)
It will be interesting to see how the Second Circuit handles the issue of the district court’s finding regarding specific knowledge of infringement is necessary, not general knowledge.
I think the best that Viacom may be able to hope for from the Second Circuit is that there are triable issues of fact and summary judgment for YouTube was unwarranted. (Based on the number of facts presented by Viacom, this seems to be its strategy.)
The third reason set forth by Viacom is by far the more interesting legal argument. While Viacom is surely unhappy with the result of district court under Reasons 1 and 2 above and would like a ruling in its favor based on the facts it presents, it seems that Reason 3 would be the best argument to obtain summary judgment in Viacom’s favor. The more interesting questions facing the Second Circuit are not argued fully until nearly 50 pages into the Opening Brief.
Interestingly, Viacom has primarily focused on the factual findings of the district court in granting summary judgment for YouTube as an internet service provider under Section 512(c). Section 512(c) provides a defense to copyright infringement for certain activities carried out by internet service providers. (Further explanation available here.)
Viacom has stated three reasons why Section 512(c) should not apply to YouTube:
- YouTube had knowledge that the content on YouTube was infringing or were aware of facts and circumstances that the content was infringing and did nothing to stop infringement. Viacom claims that YouTube’s general knowledge of infringing activity on its website should be sufficient to prevent YouTube’s service provider defense under Section 512(c).
Viacom alleges that YouTube selectively enforced against copyright infringement when YouTube had programs available to weed out infringing works and ignoring community flagging systems that would have pointed out infringing works. Viacom also claims that YouTube was aware of the predominant amount of infringing works that were available on its site and encouraged these videos because YouTube received more “hits” from these videos.
The court found that YouTube took appropriate action when advised of the alleged infringing web posts by Viacom. The court found specific knowledge was needed in order for the Section 512 defense to not apply. - YouTube had the ability and control over the infringing content and received a direct financial benefit. Viacom claims that YouTube gained financial benefits from advertising revenue due to the increased audience at its website. Viacom points to certain facts that YouTube realized that a major part of its success were videos that infringed on copyrights.
Viacom also reiterates that YouTube could have taken action against infringing activities but did not. The district court found that YouTube must have specific knowledge of the infringing content in order to be able to control the infringing activity. - YouTube’s activities went beyond the storage function of a service provider under Section 512(c). Viacom claims that YouTube’s actions in posting user content includes more than just storage – including display, reproduction, performance and licensing content to others.
The district court found that YouTube’s activities in placing the user’s content on its website was incidental to the acts of storage and thus was within the parameters of the Section 512(c) defense.
For the first 2 reasons set forth by Viacom, it would seem heavily reliant on Grokster and general principles from the case. Based on the district court decision, Viacom would argue a couple of small changes and Grokster would not have been guilty of infringement. (This may be true.)
It will be interesting to see how the Second Circuit handles the issue of the district court’s finding regarding specific knowledge of infringement is necessary, not general knowledge.
I think the best that Viacom may be able to hope for from the Second Circuit is that there are triable issues of fact and summary judgment for YouTube was unwarranted. (Based on the number of facts presented by Viacom, this seems to be its strategy.)
The third reason set forth by Viacom is by far the more interesting legal argument. While Viacom is surely unhappy with the result of district court under Reasons 1 and 2 above and would like a ruling in its favor based on the facts it presents, it seems that Reason 3 would be the best argument to obtain summary judgment in Viacom’s favor. The more interesting questions facing the Second Circuit are not argued fully until nearly 50 pages into the Opening Brief.
Thursday, July 8, 2010
Viacom v. YouTube, Part II
Last week Part I of the Copyright Chronicle's discussion of the Viacom v. YouTube opinion covered YouTube's protection under the "safe harbor" provision of §512(c) the Copyright Act and the red flag test to determine when facts or circumstances of infringing activity is apparent.
Part II discusses the Court's analogies to Tiffany v.Ebay and Grokster in its opinion.
The district court's opinion makes 2 analogies which are troubling. The first is the correlation to the Tiffany v. Ebay decision in the Second Circuit and the second is the correlation between Grokster (and related cases) and YouTube.
The Ebay Analogy
Starting on page 18 of the Viacom decision, the Court discusses the recent Second Circuit decision in Tiffany v. Ebay. Ebay was found not liable for contributory infringement when a significant number of the TIFFANY goods sold on its website were found to be counterfeit. The Court compares Ebay’s generalized notice that some of the Tiffany products sold on Ebay are counterfeit with YouTube and similarly decides that YouTube is not liable for infringement. However, there are distinguishing facts and circumstances.
First, unlike eBay, YouTube has control over the infringing material. eBay may sell goods through its website; however, eBay itself never had possession, custody or control over the goods themselves. eBay has no way of inspecting or reviewing the goods to determine whether the goods are fake or real. (Although, eBay’s level of promotion and general knowledge regarding counterfeits of Tiffany products on its website may raise a question regarding false advertising versus fair use.)
YouTube does have possession, custody and control over the submissions of users. (YouTube requires that videos posted to its website be uploaded to its servers.) Viacom had evidence that YouTube monitors the content of its website. See Page 39 and footnote 20 of Viacom’s Opposition to YouTube’s Motion for Summary Judgment and YouTube’s Answer to the First Amended Complaint at ¶ 39:
However, YouTube’s affirmative step of reviewing video posts for content should present not only a question of fact (the case was decided on summary judgment), but also a different analysis than eBay. The standard must be raised for an internet service provider who monitors and reviews the content. YouTube chooses the content it wants to make available on its website.
Unlike eBay, YouTube knows what goes up on its website. While there is apparently less monitoring now, it does not change the fact that YouTube specifically monitored the content being posted for more than mere categorization. See Footnote 20 of Viacom’s Opposition to YouTube’s Motion for Summary Judgment.
As alleged in the Complaint, YouTube was actively looking for and removing pornography from its website. If such content based decisions were being made by YouTube, YouTube is more than an online service provider and merely adhering to the safe harbor provisions is a cop out.
A higher standard must be applied when content is being reviewed in the first instance and more than for references to “pirating,” as proposed by the Court’s decision as a red flag for copyright infringement. It could not be Viacom’s burden under these circumstances to know which specific videos were monitored. YouTube is in complete control of the videos and the decisions after reviewing the content of its posts – both general and specific. (If YouTube does not keep records or tracking of the specific videos reviewed for content, how could YouTube prove that their knowledge was only general? Again this is another instance of a factual inquiry which should not have been resolved at summary judgment.)
While the Court takes some solace in the success of the notice and takedown provisions under the DMCA by claiming that the problem is fixed after notification to YouTube, it is of little solace to the copyright content owners whose exclusive rights and work value is already diminished.
Perhaps fittingly and unwittingly, in quoting the eBay decision, there is an indication that there is a solution for Viacom and other content providers: “Some contemporary knowledge of which particular listings are infringing or will infringe in the future is necessary.” See Page 20.
Perhaps, the proposal in the previous posting that Viacom could put everyone on general notice (and perhaps YouTube on specific notice) that none of its content is permitted on the Internet to be streamed and provided an indicator (such as the CBS eye or Comedy Central logo in the corner) may appropriately satisfy the Second Circuit’s requirement for liability.
The Grokster Analogy
The Court’s analogy between Grokster, Fung, Lime Group, and the infamous Napster cases seems to make a better case that Napster and other peer file-sharing website may have been simply before their time and as the law catches up, there may be different results. The Court relies heavily on the statement of Viacom’s General Counsel that the behaviors of Grokster and YouTube are not the same. But I am not sure how this matters or of the complete context of this statement.
In distinguishing YouTube from Grokster, the Court finds that Grokster’s conduct did “not comport with that of a service provider who furnishes a platform on which its users post and access all sorts of materials as they wish, while the provider is unaware of its content, but identifies an agent to receive complaints of infringement, and removes identified material when he learns it infringes.” See Page 23.
Given the broad definition applied to service providers (which would include YouTube), it is difficult to say that Grokster (and for that matter Napster) was not a service provider. Grokster and Napster provided a platform for the exchange of information online. Napster, at its height, was unlikely to be aware of (or even capable of ascertaining) all of the content posted on its website. There is also a clear argument to be made that Grokster had generalized knowledge similar to YouTube. The difference then is really that Grokster and Napster did not have complaint departments and did not or could not remove specifically identified information.
I think that analogizing YouTube to Napster and Grokster and their progeny may have unintended ramifications. It would seem all you need is a DMCA notice and takedown policy and Napster, in its previous form, would still be around today.
Part II discusses the Court's analogies to Tiffany v.Ebay and Grokster in its opinion.
The district court's opinion makes 2 analogies which are troubling. The first is the correlation to the Tiffany v. Ebay decision in the Second Circuit and the second is the correlation between Grokster (and related cases) and YouTube.
The Ebay Analogy
Starting on page 18 of the Viacom decision, the Court discusses the recent Second Circuit decision in Tiffany v. Ebay. Ebay was found not liable for contributory infringement when a significant number of the TIFFANY goods sold on its website were found to be counterfeit. The Court compares Ebay’s generalized notice that some of the Tiffany products sold on Ebay are counterfeit with YouTube and similarly decides that YouTube is not liable for infringement. However, there are distinguishing facts and circumstances.
First, unlike eBay, YouTube has control over the infringing material. eBay may sell goods through its website; however, eBay itself never had possession, custody or control over the goods themselves. eBay has no way of inspecting or reviewing the goods to determine whether the goods are fake or real. (Although, eBay’s level of promotion and general knowledge regarding counterfeits of Tiffany products on its website may raise a question regarding false advertising versus fair use.)
YouTube does have possession, custody and control over the submissions of users. (YouTube requires that videos posted to its website be uploaded to its servers.) Viacom had evidence that YouTube monitors the content of its website. See Page 39 and footnote 20 of Viacom’s Opposition to YouTube’s Motion for Summary Judgment and YouTube’s Answer to the First Amended Complaint at ¶ 39:
“Defendants admit that the Terms of Use contain certain content-based restrictions on the types of videos users may upload and store on the service, and that YouTube reserves the right to remove from the service material uploaded in violation of YouTube’s Terms of Use.”The Court quickly brushes aside YouTube’s “monitoring” as defensible as part of providing online service citing 17 U.S.C. § 512(m)(1) and monitoring for cataloging or editor review to provide information location tools under 17 U.S.C. § 512(d). See Pages 14 and 16.
However, YouTube’s affirmative step of reviewing video posts for content should present not only a question of fact (the case was decided on summary judgment), but also a different analysis than eBay. The standard must be raised for an internet service provider who monitors and reviews the content. YouTube chooses the content it wants to make available on its website.
Unlike eBay, YouTube knows what goes up on its website. While there is apparently less monitoring now, it does not change the fact that YouTube specifically monitored the content being posted for more than mere categorization. See Footnote 20 of Viacom’s Opposition to YouTube’s Motion for Summary Judgment.
As alleged in the Complaint, YouTube was actively looking for and removing pornography from its website. If such content based decisions were being made by YouTube, YouTube is more than an online service provider and merely adhering to the safe harbor provisions is a cop out.
A higher standard must be applied when content is being reviewed in the first instance and more than for references to “pirating,” as proposed by the Court’s decision as a red flag for copyright infringement. It could not be Viacom’s burden under these circumstances to know which specific videos were monitored. YouTube is in complete control of the videos and the decisions after reviewing the content of its posts – both general and specific. (If YouTube does not keep records or tracking of the specific videos reviewed for content, how could YouTube prove that their knowledge was only general? Again this is another instance of a factual inquiry which should not have been resolved at summary judgment.)
While the Court takes some solace in the success of the notice and takedown provisions under the DMCA by claiming that the problem is fixed after notification to YouTube, it is of little solace to the copyright content owners whose exclusive rights and work value is already diminished.
Perhaps fittingly and unwittingly, in quoting the eBay decision, there is an indication that there is a solution for Viacom and other content providers: “Some contemporary knowledge of which particular listings are infringing or will infringe in the future is necessary.” See Page 20.
Perhaps, the proposal in the previous posting that Viacom could put everyone on general notice (and perhaps YouTube on specific notice) that none of its content is permitted on the Internet to be streamed and provided an indicator (such as the CBS eye or Comedy Central logo in the corner) may appropriately satisfy the Second Circuit’s requirement for liability.
The Grokster Analogy
The Court’s analogy between Grokster, Fung, Lime Group, and the infamous Napster cases seems to make a better case that Napster and other peer file-sharing website may have been simply before their time and as the law catches up, there may be different results. The Court relies heavily on the statement of Viacom’s General Counsel that the behaviors of Grokster and YouTube are not the same. But I am not sure how this matters or of the complete context of this statement.
In distinguishing YouTube from Grokster, the Court finds that Grokster’s conduct did “not comport with that of a service provider who furnishes a platform on which its users post and access all sorts of materials as they wish, while the provider is unaware of its content, but identifies an agent to receive complaints of infringement, and removes identified material when he learns it infringes.” See Page 23.
Given the broad definition applied to service providers (which would include YouTube), it is difficult to say that Grokster (and for that matter Napster) was not a service provider. Grokster and Napster provided a platform for the exchange of information online. Napster, at its height, was unlikely to be aware of (or even capable of ascertaining) all of the content posted on its website. There is also a clear argument to be made that Grokster had generalized knowledge similar to YouTube. The difference then is really that Grokster and Napster did not have complaint departments and did not or could not remove specifically identified information.
I think that analogizing YouTube to Napster and Grokster and their progeny may have unintended ramifications. It would seem all you need is a DMCA notice and takedown policy and Napster, in its previous form, would still be around today.
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