Viacom's New Argument Against YouTube: Embedding Videos Removes Safe Harbors

from the active-vs.-passive dept

While we already discussed Google's latest response to Viacom's lawsuit against YouTube, Cynthia Brumfeld has picked up on an interesting point that's been overlooked: Viacom's amended complaint includes a slightly different argument as to why Google/YouTube are not protected by the DMCA's safe harbors, effectively claiming that YouTube takes an active role in transmitting the content. This is somewhat similar to an earlier argument that some made that YouTube is disqualified from the safe harbors because it transforms video from its original format into flash, but stretches it even further.

Even worse, Viacom brings up the issue of embedding videos. Of course, YouTube's embedding feature that allows anyone to easily embed a video in any webpage was one of its big selling points. Last year, we had raised the question (that still hasn't been answered) whether or not it was copyright infringement to embed an infringing video into your own site (even though you don't host the content at all). Viacom seems to be claiming that by enabling this act of embedding is infringing. Why? Because it's YouTube serving up the video, rather than the original uploader.

That's a huge stretch by any imagination and hopefully the court will toss it out. Otherwise, it effectively nullifies the entire safe harbor provision of the DMCA. The point of the safe harbors are to protect the platform provider for the infringement of its users. If the court accepts Viacom's claim here, then it completely throws out that clear meaning of the safe harbor provision. It basically says that any service provider who "hosts" content that is accessed via another site is now guilty of copyright infringement, even if the company is never alerted that the content infringes. That goes against the clear meaning and purpose of the safe harbor provisions.


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  1.  
    identicon
    TriZz, May 28th, 2008 @ 8:41pm

    DMCA Safe Harbor (Viacom's Case has wheels?)

    I remember reading this comment last night on Slashdot by an Anonymous Coward and I thought I'd point it out. I haven't read the DMCA, so I'm not exactly sure how accurate this is...but it was interesting nonetheless:

    "...As I remember, the DMCA has a safe harbor provision for "platform" and "network" providers that, basically says - as long as you don't exercise control over the content on your platform/network, you cannot be sued for infringement, the plaintiff must sue the one who uploads/transfers using your service..."

    Since YouTube formats the content in flash and allows people to embed the content...doesn't that mean that that they're exercising control over it?

    Again, I'm not claiming this as truth...but if it is, then could Viacom actually have a case?

     

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  2.  
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    Anonymous Coward, May 28th, 2008 @ 9:17pm


    I'm suing you for .. ONE ... MILLION ... DOLLARS

     

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  3.  
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    Paul (profile), May 28th, 2008 @ 9:21pm

    Re: DMCA Safe Harbor (Viacom's Case has wheels?)

    17 U.S.C. § 512 (c) states:

    Information Residing on Systems or Networks At Direction of Users. -

    (1) In general. - A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider -

    (A)

    (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

    (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

    (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

    (B) Does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

    (C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.


    This is only the first subsection of section C. The two other subsections deal with The Notification Agent, and also The Elements of Notifcation (which I believe there is a strong case for Viacom being in violation). In any case, I'm referring only to the quoted subsection above from now on.

    YouTube seems to be clear on subsection (1)(C). They remove items when notified. There's a strong case that its clear on (1)(B) as well. It does not receive financial benefit due *directly* to infringement. Even if you make a case that it does, in my opinion, it's still in the clear because it has no control over that activity. So, (1)(B) is debatable, at least from the view of a non-lawyer-type such as myself. In my opinion, they're also clear on (1)(A). Keep in mind, parts (1)(A)(ii) and (1)(A)(iii) are combined with an "or."

    Apologies if my post is difficult to read. Not being a lawyer makes it a little difficult to know how to correctly refer to various subsections of subsections of subsections (so on and so forth).

     

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  4.  
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    Paul (profile), May 28th, 2008 @ 9:33pm

    Re: Re: DMCA Safe Harbor (Viacom's Case has wheels?)

    Just a note on how a case could be built against Viacom.

    Here's the portion that would apply to Viacom. This is Section (3) of the section (C) as above. I only included subsection (1) of 2. The second would only apply to YouTube.

    (3) Elements of notification. -

    (A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:

    (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

    (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

    (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

    (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

    (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

    (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.


    Viacom can be called into question on (3)(A)(vi). Viacom has pretty much made a statement, under the penalty of perjury, that they were authorized to act on behalf of the owners of all the works they had taken down. However, this has been shown to be the case as there have been numerous stories of people's videos being identified as infringing by Viacom accidentally. So, basically, Viacom has committed perjury... and there's really no argument to say they haven't.

     

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  5.  
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    Paul (profile), May 28th, 2008 @ 9:48pm

    On embedded videos

    In terms of streaming embedded videos, I believe a different section of the Safe Harbor provision applies to YouTube

    17 U.S.C. § 512 (a) states:

    Transitory Digital Network Communications. -

    A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, 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, if -

    (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 of its content.


    If this section *does* apply to YouTube in terms of embedded videos, they may have enough wiggle room to get by. They pass (1) because the user initiates the stream by clicking play OR the web designer initiates it if they write the code to automatically play (if thats possible). They obviously pass (2). They also clearly pass (3). They *technically* pass (4), but this is where it requires wordplay. One might say they keep a copy of the material on their servers BUT the actual provision says they're not allowed to keep any copies made during the transmission beyond what's reasonable. Technically, they don't keep any newly created copies (that I know of). The original copy is all they keep and that was already stored on their servers. So no copy is made during transmission. (5) I really can't comment on. I believe the form that they transmit it is the same that they store on their servers. I really don't know though. If thats not the case, then they might have a problem.

    I'm no lawyer. I'm just reading this stuff and going on what I think it means. I could be wrong. This may not apply to YouTube at all. In any case, no matter what kind of copyright infringement Viacom claims, YouTube is protected as long as they abide by all the applicable rules of The Safe Harbor Provision.

     

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  6.  
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    mike allen, May 28th, 2008 @ 11:41pm

    deliberate

    Having searched youtube several times and found "outtakes" and "material not broadcast" this can only have come from one place VIACOM therefore they have placed material on youtube possibly with the intent of suing.

     

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  7.  
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    Ferin, May 29th, 2008 @ 4:54am

    Wait...

    So, embedding infringing content makes the host an infringer? That makes no sense at all. What if I provided a link to the video, instead of embedding it? Or what if I embedded an infringing picture hosted on picasa? These people don't think this shit through, I think.

     

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  8.  
    identicon
    www.custompcmax.com, May 29th, 2008 @ 6:31am

    When are they just going to STFU? This is the stupidest thing I have ever heard... talk about splitting hairs. Like the last poster said, would it be illegal to have a link to said copyrighted video? Who would the blame fall on then? But, if it is an embedded video, it is the site owners fault?

     

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  9.  
    identicon
    Anonymous Coward, May 29th, 2008 @ 7:40am

    Re: DMCA Safe Harbor (Viacom's Case has wheels?)

    Note that Google's player/skin are a completely separate file from the video. The player skin is a ".swf" file that calls a separate ".flv" video file and embeds it inside the flash. At least that is how flash video usually works.

    So the only "manipulation" of the video that Google has done is compression. And one would hope that no court would consider compressing a video to be modifying it.

    So no, I think that Google is not exercising control over the video. They simply give users the option to do what they want with a video the users claimed was legit.

     

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  10.  
    identicon
    mobiGeek, May 29th, 2008 @ 11:21am

    How is this different from blogs and/or comments

    Is TechDirt culpable for the comments posted? This is the same thing as TechDirt takes my comment, modifies it with its own encoding, and serves the content from its database/webserver.

     

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  11.  
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    pixelm, May 30th, 2008 @ 12:32pm

    Misstates the claim completely

    folks - knowledge eliminates the DMCA defense. Read the language of 512(c).

    Right and ability to control (filtering and/or human review of at least widely viewed clips) plus financial benefit (have to assume Google did not pay $1.6 billion for YouTube for charitable reasons) also (and independently) eliminates the DMCA defense.

    YT is a media company - just like napster built on knowing the facilities would be used to infringe and building an advertising business on that - while doing everything they can to pretend to avoid knowing it. The DMCA would protect them only if they were a common carrier storage busienss not built on attracting eyeballs to content that others store, but built on providing the storage facilities for their customers. Google is a search company - so why do they pretent not to know what is on their own website when so many other folks can do video search so well?

     

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  12.  
    identicon
    shanelle, Sep 17th, 2012 @ 5:07pm

    youtube vidoes

    exacly youtube videos are too crazy and too inapropiate its kidss doing crazy things

     

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