Law & Disorder / Civilization & Discontents

SueTube: sex, copyright, and rock & roll

Since its launch, YouTube has been a magnet for controversy. Ars looks at the …

A litigation electromagnet

Popular video sharing site YouTube managed to avoid getting into big trouble in its early days. Perhaps due in part to the concept's newness at the time, various entities simply didn't seem interested in dealing with YouTube. But Google's acquisition of the company changed all that. It was as though a switch was flipped: Google's deep pockets and YouTube's increasing popularity meant that not only were more videos of everything imaginable being uploaded, but taking action against the service might actually show some results.

And so YouTube became a massive lawsuit electromagnet, attracting legal challenges from across the country and around the world. Google has maintained that most complaints should fall under the DMCA's Safe Harbor provision—meaning that a web site operator cannot be held liable for infringing material posted by one of its users as long as it complies with removing copyrighted material upon request.

That argument hasn't stopped everyone, however, from trying to hold Google and YouTube accountable for the content it hosts. In what follows, we look at the legal landscape so far and what the implications of the lawsuits might be for YouTube and sites like it.

The lawsuits

The first suit filed against YouTube came just before the Google acquisition, filed by the owner of the Los Angeles News Service, Robert Tur. Footage of the 1992 Los Angeles riots (to which Tur owns the copyright) had been uploaded to YouTube. Tur accused YouTube of not only allowing the uploading of copyrighted content but actively encouraging users to do so. He also complained of difficulty in identifying videos to be taken down because of YouTube's "moving target" (users constantly re-uploading clips under different titles and tags). Tur's suit is still ongoing, although he recently told CNET in an interview that he would consider dropping the suit if the outcome may adversely affect the outcomes of lawsuits from other, larger copyright owners.

The next prominent suit was the now-infamous $1 billion Viacom suit. Viacom had been battling it out with YouTube and Google for some time before filing the suit, sending thousands of takedown requests for various TV shows being uploaded by YouTube's users. Viacom accused YouTube of exhibiting "brazen disregard of the intellectual property laws." It even went so far as to say that YouTube might be deliberately trying to profit from copyrighted materials by not utilizing a content filtering system, instead forcing content creators to send takedown notices.

The Viacom suit is still some distance away from a trial, and Viacom was at one point a party to Tur's suit for fear that the outcome of his case—the first one against YouTube—could have far-reaching effects on the its own suit. "The judge in that case ruled that our involvement in our own YouTube litigation precluded us from participating in the amicus," Viacom's VP of Media and Editorial, Jeremy Zweig, told Ars. "We are proceeding with our own litigation."

But the lawsuits aren't limited to just those in the US. The English Premier League decided that it, too, would sue YouTube over allowing its soccer videos to be watched on the site. The league said that YouTube "knowingly misappropriated" its content, according to the BBC, in order to exploit the EPL's intellectual property for YouTube's own gain. The damages sought in the suit have yet to be specified, and the French Ligue de Football Professionnel and the Federation Francaise de Tennis (organizers of the French Open) have since joined the lawsuit.

Is there an answer to the moving target problem that seems to get YouTube into so much legal trouble? A popular solution proposed by content providers like Viacom is a content filtering system. But YouTube continues to insist that such a system would not be a magic bullet, potentially targeting too many videos—such as parodies and legitimate clips that fall under fair use—or too few videos because of inaccuracies in labeling and tagging. That said, the company has said that it is looking into filtering solutions that will make everyone happy and has more recently said that it is making progress, although no deals have been struck yet.

"It looks likely that some kind of automated mechanism for identifying copyrighted materials will be adopted by many, if not all, of the major video sites," EFF staff attorney Fred von Lohmann told Ars. He said that while YouTube may be taking its time in implementing such a thing, a content filtering system is coming "irrespective of the outcome of the Viacom v. YouTube lawsuit."

Video sites have a strong incentive to make content providers happy in order to license content from them in the future, and YouTube is no exception. "The key issue will be implementing these tools in a way that leaves the door open for legitimate, transformative uses of copyrighted materials," von Lohmann said. "That's the ball that EFF has its eye on."

But the outcomes of the lawsuits could have a real impact. "As for the Tur case, because it was filed first, it will likely result in a published court ruling before the Viacom suit does. That ruling, in turn, will serve as a precedent that may be persuasive to the judge in the Viacom case. So it's an important case to watch," added von Lohmann. "At the same time, most legal observers believe that Tur is going to lose, since he has both a weak legal argument and is vastly outgunned by Google's legal team."

That would mean that if any case has some real likelihood to affect the legal landscape of the Internet, it would be Viacom's. Why the Internet and not just YouTube? The DMCA's Safe Harbor provisions aren't just important to video sharing sites; they're important to almost every sector of Internet-based business. "Nearly every major Internet company depends on the very same legal foundation that YouTube is built on," said von Lohmann.

"A legal defeat for YouTube could result in fundamental changes to its business, potentially even making it commercially impossible to embrace user-generated content without first 'clearing' every video. In other words, a decisive victory for Viacom could potentially turn the Internet into TV, a place where nothing gets on the air until a cadre of lawyers signs off," he said. "More importantly, a victory for Viacom could potentially have enormous implications for Yahoo, eBay, Amazon, MySpace, and many other Internet companies, because they all rely on the same DMCA Safe Harbors to protect many facets of their businesses, as well. The stakes are high all around."


Expand full story

You must to comment.