Court Explains Copyright Law To Viacom (Perhaps Not For The Last Time)
from the punitive-damages-don't-exist-in-copyright-law dept
It’s been a year since Viacom sued YouTube for $1 billion dollars, and it appears that the company is still learning the very basics about copyright law. A quick legal analysis (and understanding of the safe harbors in the DMCA that protect service providers from the actions of their users) would suggest that YouTube is not liable for the infringement that occurs on the site. But that didn’t stop Viacom from suing. In fact, it tried to go much further than just the $1 billion in claiming that YouTube/Google actually owed it additional punitive damages as well. It appears the judge is having none of that, pointing out to Viacom’s lawyers that the Copyright Act does not have any provision for punitive damages. This isn’t a deep legal question, it’s a question of reading the basic statute, as the judge makes pretty clear in the ruling. Hopefully, the judge will also notice that Viacom doesn’t seem to have read the safe harbor provision of the DMCA either.
Filed Under: copyright, punitive damages, youtube
Companies: google, viacom, youtube
Comments on “Court Explains Copyright Law To Viacom (Perhaps Not For The Last Time)”
Corporate mentallity in this world has come to an all time low!!
– I can’t sell my services and products, so instead of actually coming up with a business model that our customer accept, we will just sue anyone and everyone we can and make money for our shareholders and execs that way.
Can anyone say “BULLSHIT” !
I’m starting to be glad I’m getting old, don’t really want to live in this jacked up world anymore. They are destroying life as we knew it.
Just trying their luck
It wouldn’t suprise me if these company lawyers are just trying their luck and seeing what they can get away with, despite knowing forwell each letter of copyright law. They’ve got nothing to loose – nothing worse that the judge saying ‘no’, right?
More Techdirt head in the sand
YouTube is not a “service provider” they are not a conduit for info between locations like an ISP.
They are a video broadcasting site with a for profit business model around trading content for ad viewership.
There may not be punitive damages..
But Viacom has right to the revenue created by content it owns that youtube hosts and any damages they can prove to thier revenue.
I don’t know how the case will go and what the final settelment would be.. but they have a right to sue.. as long a youtube hosts and makes money of copyrighted content.
Re: More Techdirt head in the sand
They are a video broadcasting site with a for profit business model around trading content for ad viewership.
And ISPs are not for-profit companies?
But Viacom has right to the revenue created by content it owns that youtube hosts and any damages they can prove to thier revenue.
If (and it’s a big if) Viacom has the right, shouldn’t the liability be on the person who uploaded the content?
I don’t know how the case will go and what the final settelment would be.. but they have a right to sue.. as long a youtube hosts and makes money of copyrighted content.
If that’s true, then the entire basis of the DMCA’s safe harbor provision is meaningless. All service providers are for profit, and if someone is using their site to host infringing material, then clearly those ISPs are profiting form the material as well. So if we believe your statement, then the safe harbor provision is meaningless.
Yet, I don’t see anywhere in the safe harbor provision where it says the service provider can’t be profiting. If you could point that section out… it would be helpful.
Re: Re: More Techdirt head in the sand
I wrote:
They are a video broadcasting site with a for profit business model around trading content for ad viewership.
Mike wrote:
And ISPs are not for-profit companies?
Different business model AS I WROTE… ISPs and web hosts make their money by charging users for access to resources. They are content agnostic, and are being judged more like a phone company or courier service.
YouTube makes money directly off the content, they are not selling a video hosting service though many use it that way. They make money by getting people to view THEIR OWN SITE and seeing ads. So the value of the content is important to them. Even hosted video is designed to drive people back to YOUTUBE so is more of an self advertising system then any kind of content agnostic service.
There is difference.
It would be good if a judge explained copyright to techdirt and readers here too. This whole techdirt post is smug for the wrong reason. The law is about damages not punishment. That is all that Viacom got wrong. The fact that after review the suit continues after being corrected for this error, makes it stronger, because it probably could have been tossed out at totally if it had no merit.
Re: Re: Re: More Techdirt head in the sand
Different business model AS I WROTE… ISPs and web hosts make their money by charging users for access to resources. They are content agnostic, and are being judged more like a phone company or courier service.
And where is the type of business model specified in the statute?
It is not. Your statement is wrong. You may not like it, but there is no difference in how the service provider makes its money.
Re: Re: Re:2 More Techdirt head in the sand
And where is the type of business model specified in the statute?
Where the word “service provider” is used in the language of the statute.
Re: Re: Re:2 More Techdirt head in the sand
And where is the type of business model specified in the statute?
Where the term “service provider” is used. According to the statute, a “service provider” is “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” In essence, a service provider is one that merely provides access from one point to another, not one that hosts one of the said points.
YouTube does not fall into this category. If it did, the suit would have been dismissed a long time ago.
Re: Re: Re:3 Sorry, forgot the citation to the definition.
See 17 U.S.C. sec. 512(k)(1).
Re: Re: Re:3 More Techdirt head in the sand
Where the term “service provider” is used. According to the statute, a “service provider” is “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” In essence, a service provider is one that merely provides access from one point to another, not one that hosts one of the said points.
Which part of that specifies that an ad-based business model is not protected, which was the claim I was responding to. I don’t see anything in the entire text (and certainly not in your highlighted portion) that says an ad supported business model disqualifies one from protection.
As for YouTube not falling into that category, I’m still confused as to how you see that. It seems like they certain do fall into that category. Can you explain why they do not?
Re: Re: Re:4 More Techdirt head in the
Which part of that specifies that an ad-based business model is not protected, which was the claim I was responding to. I don’t see anything in the entire text (and certainly not in your highlighted portion) that says an ad supported business model disqualifies one from protection.
Fair point. I thought FUG was making a distinction on how YouTube conducts itself, not how it makes money.
As for YouTube not falling into that category, I’m still confused as to how you see that. It seems like they certain do fall into that category. Can you explain why they do not?
The portion I highlighted, referring to “between or among points,” is, I believe, the relevant distinction. A service provider on the web, as it’s defined in the statute, is much like a taxi service: it serves as a vehicle to take a person “between or among points.” Another way a site can qualify as a service provider is if the site is like a middleman (or search engine), where one goes to it for the service of pointing him in the direction he wants to go.
YouTube, however, does not provide access to various points. It provides access to itself. One does not go to YouTube for the service of going somewhere else; One goes to YouTube to watch material that is specifically on YouTube. YouTube does not point one to where certain material is; YouTube hosts that material.
In my mind, YouTube does not provide a service to its users – it provides goods that it holds. Hence, I don’t think YouTube falls within the definition of “service provider.”
Re: Re: Re:5 More Techdirt head in
In my mind, YouTube does not provide a service to its users – it provides goods that it holds. Hence, I don’t think YouTube falls within the definition of “service provider.”
Well, we’ll agree to disagree and see what the court has to say about it in the end. 🙂
I think that YouTube very much is a service provider. It provides hosting of that content. The same is true of any other service provider — and the courts (as I’m sure you’re aware) have defined “service provider” very broadly, including plenty of destination sites. If you’d like me to point you to various cases where courts have declared destination sites that offer a service and host content as “service providers” for the sake of safe harbor protections, I can do so… I think if the court finds YouTube not to be a service provider here it will set a very different precedent than almost every court decision on this topic.
Re: More Techdirt head in the sand
Hey Shill Troll FUG Buster , go to a board that actually has people that are as delusional as you are.
Safe Harbor is not just for ISP’s it’s for anyone who hosts a website that has user generated content, including message boards and sites that allow uploaded content like YouTube.
Re: Re: More Techdirt head in the sand
I think, however being canadian, so this dosent apply to me.
I think maybe what this that youtube isnt its on network. It is being hosted in its own offices. But the tubes that provide, aren’t theirs.
So they host content.
Just like any other provider.
Corporations don’t care if the law is on their side or not. The point is to sue someone into financial oblivion. You Tube has to pay lawyers to respond to their suits. Sue them into submission. The purpose is not to win, but to harass and discourage.
Re: Re:
Haha, youtube is owned by google. I’d *love* to see someone try to sue google into “financial oblivion”, Clash of the Titans style.
🙂
ASSinine
Yeah, I got a take-down or die notice from those yobbos after posting a 2 minute clip from “Kids in the Hall”. I had made the clip from the DVD set I bought. Needless to say I ripped the DVD’s and sold them on Ebay. It also goes without saying the only way their content will enter my household is on pirated media.
You hear that Vaccu-com? You suck! And you made your own problem worse. More piracy, less buy-racy!
Two problems
1. In order to fall under the “safe harbor” provision in 17 U.S.C. sec. 512, which is the provision you’re talking about, YouTube would have to maintain “no … copy [of the copyrighted material] 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.” 17 U.S.C. sec. 512(a)(4). YouTube, however, does maintain copies of this material on its site for as long as it wants. There is nothing “transient” about how YouTube stores its copyrighted material. Hence, YouTube does not qualify for the “safe harbor.”
2. Apparently you forgot about MGM v. Grokster. The Supreme Court’s “inducement rule” in Grokster seems to apply to YouTube.
This suit is going forward.
Re: Two problems
So you’re saying that if I decide to start posting paragraphs from one of the Harry Potter books than TechDirt could be sued? TechDirt keeps a copy of all posts on their server (it ain’t sitting on mine) and they keep it for as long as they have space (you can still see posts from 2001).
No one ever did say how Google was supposed to keep youtube Viacom free. Maybe this is the Google killer that everyone speaks of since they keep a copy of every website they index in their cache on their servers (note the cashed link under every result).
Re: Two problems
1. In order to fall under the “safe harbor” provision in 17 U.S.C. sec. 512, which is the provision you’re talking about, YouTube would have to maintain “no … copy [of the copyrighted material] 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.” 17 U.S.C. sec. 512(a)(4). YouTube, however, does maintain copies of this material on its site for as long as it wants. There is nothing “transient” about how YouTube stores its copyrighted material. Hence, YouTube does not qualify for the “safe harbor.”
You are wrong. What you mean to say is that they are liable if they do not take material down after being alerted to its presence. But they DO take it down, and have a staff of folks who handle takedown notices. In fact, it’s been shown that YouTube can be a little too aggressive, often taking down content that is not infringed.
Thus, they are still protected within the terms of the safe harbor.
2. Apparently you forgot about MGM v. Grokster. The Supreme Court’s “inducement rule” in Grokster seems to apply to YouTube.
I most certainly have not. However, I see no inducement at all. Unlike the cases of Grokster and other file sharing sites that were found to be infringing, YouTube does nothing to encourage or induce the uploading of unauthorized material. In this case, the Betamax standard would apply, and there are clearly substantial non-infringing uses of YouTube.
This suit is going forward.
Clearly, it should not.
Chronno, if they are notified of your violation and don’t remove it, then yes, Techdirt would be responsible. In fact, since that content would be stolen, you could reasonably say that Techdirt is receiving stolen property, which is a much more serious charge. If Techdirt servers viewed as crossing state lines, they could be charged with transporting stolen goods over state lines. AHHHHHHHHHHHHHHH
Re: By extension...
By extension, shouldn’t Viacom (or any copyright holder) have to notify Youtube of infringing material, and then wait & see if Youtube doesn’t remove it before proceeding in court?
Why would there be different rules for Youtube than for Techdirt?
Re: Re: By extension...
By extension, shouldn’t Viacom (or any copyright holder) have to notify Youtube of infringing material, and then wait & see if Youtube doesn’t remove it before proceeding in court?
1. What makes you think that did not happen?
2. At some point, if YouTube is not doing enough to prevent the activity from occuring, one can say that YouTube is not making a good-faith effort to comply with the law.
Re: Re: Re: By extension...
1. What makes you think that did not happen?
It did happen, and YouTube was extremely aggressive in taking down content, once notified. They keep their safe harbor protections for that reason.
2. At some point, if YouTube is not doing enough to prevent the activity from occuring, one can say that YouTube is not making a good-faith effort to comply with the law.
But they were making a good-faith effort to comply with the law. They were very quick about responding to takedowns.
What you seem to be saying is that somehow, despite it not being in the law at all, YouTube needed to somehow read the mind of copyright holders to see whether they approved or not of certain content and then make a legal determination as to whether or not each piece of content on the site infringed. That’s exactly the situation that the DMCA safe harbors were designed to avoid.
Wilton, you are wrong.
Re: Re: Re: By extension...
That has happened. On many occasions. Anytime YouTube is notified, they remove it. For instance, I can’t find that hilarious Simpsons fake trailer for the fake movie ‘Passion of the Christ 2’ anymore. It has gone away. I used to (pre-Viacom suit) be able to look up all kinds of copyrighted stuff that I can’t find anymore.
But Viacom says that YouTube is not complying by letting the content be posted in the first place. Which is idiotic because there is no way for them to know what is being uploaded until it is uploaded. Unless YouTube hired a huge amount of people to view every video before it was actually posted. Maybe Viacom should offer for pay those people???
However, Viacom isn’t doing itself any favors with this lawsuit. Back in the olden days, when thier business mdoels worked, people didn’t really pay attention to who did what, because the corps all seemed the same. People remembered the showed, not the corps who owned them. Now I feel bad towards Viacom, just as I feel kindly towards those corps that made deals with YouTube so thier copyrighted content could stay. yay! Those corps want me to see thier shows! Viacom just wants to sue my other sources of entertainment.
After watching that 4 or 5 minute Simpsons clip, it made me more than willing to watch the show in television (where Viacom would have made thier money from advertising) and think about buying the DVDs (where they would have made thier profit from overinflated prices). Now I’m just going to burn someone else’s. Forget Viacom getting my dinero in any way that I can stop.
Yay, Youtube!
Re: Re: Re:2 By extension...
The Simpsons is “owned” by Fox, and by extension NewsCorp, one of Viacom’s biggest rivals.
Re: Re: Re:3 By extension...
Good point, mainly. Except that the Simpsons are just an example and Viacom is not the only corp. that has pissed me off, just the one that was mentioned specifically in the blog article. 🙂 If the entertainment industry keeps this shit up, I’ll just stop purchasing these things from legitimate vendors, like I did with music. And believe me, my music collection expands at the same rate regardless of my sources. My movie and television series collection can grow the same way.
Re: Re:
You are partly correct: If Techdirt is notified and doesn’t remove the violating content, then they are responsible. However, the balance of your statement is incorrect. Techdirt can’t be responsible for receiving stolen property, any more than you can if I steal your neighbor’s jewelry and put it in your car. You didn’t actively accept the property, therefore no crime on your part. And as for servers sending information across state lines, since we’re talking about bits and not tangible goods, the only possible crime is wire fraud (except that requires active participation, too).
Re: Re:
Uh, no, you couldn’t say that because we’re talking about copyright infringement, not theft. No stolen goods here.
Re: Re:
“Chronno, if they are notified of your violation and don’t remove it, then yes, Techdirt would be responsible”
Funny thing is, I’m not speaking of that. I’m speaking of what would happen if youtube’s problems came here.
1) I put up the offending content.
2) TechDirt got a take down notice
3) Mike, or Tim, or whomever took down my post in a reasonable amount of time
4) I came back and put the information back
5) Repeat steps 2-4 until my IP gets banned.
6) I get a new IP and repeat steps 1-5 (now imagine that a few hundred people are doing this)
7) JKR gets pissed and sues TechDirt because they aren’t doing enough.
How is that the correct action? How is that legal? How douse that make sense?
And, as pointed out before, the rest of your comment doesn’t fit here.
uhh, viacom has lots of money
and having lots of money means you can do what you want.
if this judge doesn’t give them what they want, they’ll just buy one that does, how do you think we got the DMCA in the first place?
I wish I could put all the commentary that lashes out against evil corporations and their evil minions of evildoing in a seperate bin from the rest.
Takedown Notice
It seems that the safe harbor clause for ISP’s does not apply as Willton noted. But I think the Take Down notice should apply. If YouTube takes down the offending clips IAW the DMCA, they should be protected.
Viacom’s approach seems to more, it costs too much and takes too much time to find all the offending clips; we wouldn’t find them all anyway because there is so much content, so instead of us telling you which clips to take down, just give us 1 billion dollars! (Dr Evil laugh). Google is rich, you will never notice it, although we would be open for settlement.
And this avoids us getting sued for all those incorrect take down notices that we send out. Cause we aren’t responsible for our actions.
Re: Takedown Notice
It seems that the safe harbor clause for ISP’s does not apply as Willton noted. But I think the Take Down notice should apply. If YouTube takes down the offending clips IAW the DMCA, they should be protected.
YouTube was quite aggressive in complying with takedowns, even if they had no merit. So the safe harbor provisions actually do apply. Wilton seems to not be familiar with the details of how YouTube handled takedown notices. The safe harbor requirement is that you first must register and post a DMCA notice (which YouTube did) and then comply with any takedown notices (which YouTube did). They qualify for safe harbor protections.
Sad reality
The sad realities are,
A) Nobody knows how much infringing is going on, and how much fair use.
B) In the legal system today if you don’t bring up every single point in the beginning then you can’t bring it up later, hence then the punitive damages.
C) YouTube isn’t doing enough to stop infringement, nor are they doing enough to stop invalid take-down notices; because they can’t – it’s like stopping spam, not really possible
I work for a company owned by MTV Networks (owned by Viacom) who has user created video content. Let me tell you, every site that has UCVC wants to have infringing content, it’s what’s popular. Nobody wants see your dog fluffy chew on a bone.
Of course the last thing Viacom wants to happen is Google to say in court, “Viacom can’t even keep it’s own user generated sites copyright free, and it know it’s own content better then we do. How can we be expected to? So we get emails from the lawyers saying to call them (wouldn’t want any sort of permanent record to be brought up in court). They have requirements like “keep clips under 10 minutes”, which is 1/2 of an episode of The Daily Show; and “make sure they enter a description so that it’s ‘commentary'”. Is a 1 character description ok? Sure! It’s absurd.
So if you want the choose sides in the battle of the giant megacorps, feel free to upload as much copyrighted material to the other side’s servers as possible. May I suggest lengths 10 minutes and 5 seconds, descriptions that are just of the content of the show, not commentary and tags like “s12e15” and “part 1” to easily group them all together. Just don’t mention I said so, ’cause I’d like to keep my job.
List of Assets Owned by Viacom
List of Google Acquisitions
Safe harbor provision in 17 U.S.C. sec. 512
Wouldn’t Youtube be protected under this section, which specifically allows for “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”?
From 17 U.S.C. sec. 512(c)(1), located at http://www.copyright.gov/title17/92chap5.html
(c) 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.
—
Given Youtube’s agressive position of taking down content that’s merely alleged to be infringing, the only sticking point could be “(B) does not receive a financial benefit directly attributable to the infringing activity,” with the obvious defense being that Youtube doesn’t profit directly from infringing content. If the same advertising is on every page, whether or not the content is infringing, it can hardly be argued that Youtube is profiting directly from infringing content.
What a crock! They may not be called “punitive”, but that’s exactly what most judgements in copyright cases are. Or does anyone think that the jury actually believed that Jammy Thomas cost the music industry $220,000 worth of lost sales by having 24 songs in her shared directory?