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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Filed Under: dmca, embedding, safe harbors, youtube
Companies: google, viacom, youtube

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  1. icon
    Paul (profile), 28 May 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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