Viacom Says That By Letting People View Videos On Phones, YouTube Loses DMCA Safe Harbors

from the crazy-talk dept

We've seen how the legacy entertainment industry is trying, desperately, to undo the DMCA's safe harbors, in an attempt to force internet companies to effectively kill off user-generated content. Let's be honest here, the goal is to turn the internet more into TV, so there's less competition for the legacy players, and then they can retain their gatekeeper role. Viacom has been at the forefront of this, making some rather crazy claims regarding the DMCA's safe harbors. In the ongoing case between Viacom and YouTube, the court asked both sides to comment further on the "red flag" provisions in the DMCA.

This is the crux of the fight here, and the real problem is that (surprise, surprise) the drafters of the DMCA didn't fully understand what they were drafting, and drafted parts of the law such that they could be read in conflict. The key points are that the DMCA safe harbors require expeditious takedown of content on receipt of a valid notice of infringement. The rules for a valid notice are pretty clear, and courts have said that invalid notices do not, then, create a burden to remove content. At the same time, there is a part of the bill that says you can lose safe harbors if there are "red flags" -- that the operator knew of infringing activities on the site. So the entertainment industry's argument is that if you are aware that there's infringement on your site, you lose your safe harbors. That, of course, makes no sense. The only way to read the law such that the two sections are consistent is to read it the way YouTube reads it: if you are aware of specific infringement, rather than just general infringement, then you need to do something. That makes sense.

The problem is that Viacom execs live in a world of denial, where they pretend that it's obvious what's infringing and what's not. Thus, to Viacom, YouTube obviously knew what was infringing and what wasn't... even though Viacom itself falsely reported hundreds of videos as infringing... even though they were not.

In filing the response to the court's questions, however, Viacom takes this argument even further. Showing off its technological cluelessness, it argues that the mere act of YouTube setting up an API that allows YouTube videos to show on mobile phones and tablets outside of the browser, means that YouTube loses its safe harbors.
YouTube’s argument that its syndication must be protected because it merely "makes videos accessible" proves far too much. YT Ltr. 8. Any propagation of user-uploaded copyrighted material increases accessibility in some sense. If the DMCA immunized any act of infringement that increases access, an operator could keep the safe harbor merely by showing that its infringement enabled others to view the work, notwithstanding copyright law’s grant of exclusive rights to the copyright holder. This is why Congress limited the safe harbor to acts of infringement that occur "by reason of storage at the direction of the user."
To say that this is stretching the law to ridiculous levels would be an understatement. Effectively, what Viacom is arguing is that if someone uploads a video to YouTube, they only intend to let people watch it via the web. And the idea that YouTube might make such works available on mobile devices somehow goes against the wishes of its users, and shows YouTube making active decisions for the distribution of content. That's insane. And technologically clueless. All YouTube has done is optimize the content for the device viewing it. That's it. People uploading videos to YouTube do so because they want those videos to be seen. They are platform agnostic. Viacom's desperation to break the safe harbors of the DMCA here are really quite crazy, since Viacom itself relies on such safe harbors too -- and is putting its own business at risk out of some sort of quixotic obsession with YouTube.

Filed Under: copyright, dmca, red flags, safe harbors
Companies: google, viacom, youtube

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  1. icon
    Jay (profile), 10 Nov 2011 @ 2:18pm

    What is Viacom's model?

    If you can't buy it, break it.

    If you can't break it, sue it.

    If you can't sue it, destroy it.

    I just find it odd how this is looking more and more like a witch hunt for piracy than someone actually interested in making content available for consumers.

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