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 @ 9:48pm

    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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