This Account is Suspended

by on May 30, 2008 · 14 comments

It’s worth noting that the Viacom lawsuit against YouTube makes little sense in light of the DMCA. For the few TechLiberation readers unfamiliar with the DMCA, that’s because the law grants YouTube, and other sites with unedited user-generated content “safe harbor.” So long as YouTube honors requests to take-down material that is claimed to be protected under copyright, it isn’t liable for that material being posted in the first place.

Google is following the DMCA and even going beyond its legal obligations to protect copyright.

In fact, YouTube suspended CEI’s account—wiping out all of our videos—based on a disputed 7 seconds of footage used in one of our videos. This was a very severe punishment and thankfully our account was reinstated after we were able to argue against the merits of the take-down. For those who do violate copyright, permanent suspension is a harsh punishment—so long as the account in questions isn’t a throw-away. Google is going well beyond the required take-down in this instance.

Yet, one of the complaints Viacom has about YouTube is that it hasn’t implemented software that would automatically weed out some copyrighted material produced by the entertainment industry—something that, again, would be above and beyond their legal obligations. YouTube planned to implement this software last year, but has failed to roll it out to the site. Viacom can complain about this delay, but not in the legal sense. Viacom simply has no grounds for a legal complaint unless they can somehow argue that the safe harbor provision of the DMCA is somehow invalid. A copyright lawyer might be able to suggest to us how such a thing could be done, if possible.

If Viacom means to show that the DMCA is in conflict with other copyright law and therefore the DMCA should be abandon or at least rewritten, it makes one wonder what a new system would look like. The current system of free posting and honoring take-downs seems to work well. It allows users to upload 10 hours of content per minute to YouTube—most of it seems to be kittens doing amusing things, not pre-lease episodes of 24—while still honoring copyright through take down. This has created a whole new medium for self-expression, expanding the media market in ways we are still trying to understand.

Were another balance to be struck, one that place the burden of policing content on YouTube, we would see this explosion of user-generated content fizzle out…or at least, like I said in my previous post, on YouTube.

Another balancing of the concerns of video sites and content owners—this one more heavily favoring content owners—would create significant barriers to video sharing and drive many from the market. Even so, user-generated video won’t be going away and infringement will continue in different forms. So again I’m forced to ask, “What is Viacom getting out of this?”

  • Debbie Rose

    Nope- you’re wrong.

    It is as if you are commenting without even having read the DMCA itself.

    While I could go on for pages about what is wrong with your post, I’ll confine my comments to this: the DMCA does NOT give websites hosting user-generated content a safe-harbor.

    The safe-harbor provision is for service providers- in other words, the network operators or owners of the “pipes.” As I wrote in a post last March, http://blog.actonline.org/2007/04/lessig_on_viaco.html, this provision was the result of a long and difficult negotiation. As one of the House Judiciary counsels involved in the negotiations, I can assure you that websites such as YouTube were NOT intended to be included in the safeharbor.

    And, even if somehow the judge in the Viacom case does find that the safeharbor can apply to YouTube, it isn’t as simple as just “honor(ing) requests to take-down material” to escape liability. There’s the whole “can’t have knowledge of the infringing activity” and “can’t derive a financial benefit from the infringing activity” stuff that could really get in the way of escaping liability.

  • Debbie Rose

    Nope- you’re wrong.

    It is as if you are commenting without even having read the DMCA itself.

    While I could go on for pages about what is wrong with your post, I’ll confine my comments to this: the DMCA does NOT give websites hosting user-generated content a safe-harbor.

    The safe-harbor provision is for service providers- in other words, the network operators or owners of the “pipes.” As I wrote in a post last March, http://blog.actonline.org/2007/04/lessig_on_via…, this provision was the result of a long and difficult negotiation. As one of the House Judiciary counsels involved in the negotiations, I can assure you that websites such as YouTube were NOT intended to be included in the safeharbor.

    And, even if somehow the judge in the Viacom case does find that the safeharbor can apply to YouTube, it isn’t as simple as just “honor(ing) requests to take-down material” to escape liability. There’s the whole “can’t have knowledge of the infringing activity” and “can’t derive a financial benefit from the infringing activity” stuff that could really get in the way of escaping liability.

  • http://cordblomquist.com Cord Blomquist

    Admittedly, I haven’t read the entire DMCA. But, respectfully, it seems as though you are commenting without having read the relevant section despite your claims to the contrary.

    If you read Section 512 of the DMCA you’ll see that it establish a set of conditions that online service providers, not just ISPs, must meet in order to be protected from monetary damages for copyright infringement (the “DMCA Safe Harbors”). An online service provider is defined as “a provider of online services or network access, or the operator of facilities therefore.” Being that the conjunction is an “or” it seems we can include online services such as YouTube.

    You say that “websites such as YouTube were NOT intended to be included in the safeharbor,” but the issue of intent shouldn’t come in to play here. I’m not a lawyer, but it seems to me that the law is fairly unambiguous when it defines online services, so that courts need not refer to legislative intent. Intent doesn’t come in to play when claims are made that laws are not being enacted the way they might have been intended to be, but only when ambiguity is a factor. The DMCA is not ambiguous here, just very broad.

    You’re right that I did a poor job of defining what allows a firm to escape liability under the DMCA. Three conditions have to be satisfied, those being:

    (1) the service provider must not have actual knowledge (or awareness of facts that makes it apparent) that the content is infringing;

    (2) the service provider must not benefit financially directly from the infringing activity where it has the right and ability to control the activity; and

    (3) the service provider must act expeditiously to remove, or disable access to, the content when the service provider becomes aware that such content is claimed to be infringing (17 U.S.C. 512(c)).

    Take these one by one. Google doesn’t have knowledge of the content contained within the 10 hours of content being uploaded every minute to its site. The first condition seems satisfied by this fact alone.

    I agree with you that second condition is a bit more sticky, but in this case it depends on if Google has “right and ability to control the activity.” I think Google can argue that any online service of its kind cannot have control of copyright infringing activity simply because of the sheer volume of that activity. The fact that Google is making steps to introduce automated filtering, despite the delays in doing so, shows that it is trying to meet the burden of the ability to control.

    The third condition concerns take-down notices, which Google is honoring. And, as I said before, it’s going beyond simply removing material by also removing user accounts of offenders.

    I say Google meets the conditions and is a “safe harbor” based on a reasonable interpretation of Section 512 of the DMCA.

  • http://www.cordblomquist.com cordblomquist

    Admittedly, I haven’t read the entire DMCA. But, respectfully, it seems as though you are commenting without having read the relevant section despite your claims to the contrary.

    If you read Section 512 of the DMCA you’ll see that it establish a set of conditions that online service providers, not just ISPs, must meet in order to be protected from monetary damages for copyright infringement (the “DMCA Safe Harbors”). An online service provider is defined as “a provider of online services or network access, or the operator of facilities therefore.” Being that the conjunction is an “or” it seems we can include online services such as YouTube.

    You say that “websites such as YouTube were NOT intended to be included in the safeharbor,” but the issue of intent shouldn’t come in to play here. I’m not a lawyer, but it seems to me that the law is fairly unambiguous when it defines online services, so that courts need not refer to legislative intent. Intent doesn’t come in to play when claims are made that laws are not being enacted the way they might have been intended to be, but only when ambiguity is a factor. The DMCA is not ambiguous here, just very broad.

    You’re right that I did a poor job of defining what allows a firm to escape liability under the DMCA. Three conditions have to be satisfied, those being:

    (1) the service provider must not have actual knowledge (or awareness of facts that makes it apparent) that the content is infringing;

    (2) the service provider must not benefit financially directly from the infringing activity where it has the right and ability to control the activity; and

    (3) the service provider must act expeditiously to remove, or disable access to, the content when the service provider becomes aware that such content is claimed to be infringing (17 U.S.C. 512(c)).

    Take these one by one. Google doesn’t have knowledge of the content contained within the 10 hours of content being uploaded every minute to its site. The first condition seems satisfied by this fact alone.

    I agree with you that second condition is a bit more sticky, but in this case it depends on if Google has “right and ability to control the activity.” I think Google can argue that any online service of its kind cannot have control of copyright infringing activity simply because of the sheer volume of that activity. The fact that Google is making steps to introduce automated filtering, despite the delays in doing so, shows that it is trying to meet the burden of the ability to control.

    The third condition concerns take-down notices, which Google is honoring. And, as I said before, it’s going beyond simply removing material by also removing user accounts of offenders.

    I say Google meets the conditions and is a “safe harbor” based on a reasonable interpretation of Section 512 of the DMCA.

  • http://blog.actonline.org Morgan Reed

    Cord, I’ll let you and Debbie work on what the meaning of Section 512 is, but one thing stuck out when I read your post. you noted that: “Admittedly, I haven’t read the entire DMCA”

    Why not? The original act is only 60 pages long for goodness sake, the wordcount in your blogposts about the DMCA may actually already exceed the number of words in the Act!
    I mention this not to rip on your personally, but rather a problem in general when it comes to the DMCA and other highly technical rules and laws. People tend to read what is being said about the Act, rather than what the Act says itself.
    On the DMCA in particular, I watched Fred von Lohmann take an embarrassing shot to the ego at a congressional briefing when he claimed a specific phrase was in the DMCA. Unfortunately for Fred, a member of the audience stood up and read the section out loud – with none of the text Fred claimed. While I am certain Fred has read the DMCA, and may even keep a copy under his pillow at night, what the bill actually said had become murky in his own mind with the rhetoric surrounding it.
    Fred’s not alone – I’ve certainly munged what I thought a bill says with what it actually says, confusing rhetoric for fact. But when you want to engage in the thoughtful way on a complex issue, doesn’t it make sense to go back and ‘look at the source code’?
    I know it may hard in today’s instant blogging world to take the time to learn the facts, but it might just help.
    Here’s a link

  • http://blog.actonline.org Morgan Reed

    Cord, I’ll let you and Debbie work on what the meaning of Section 512 is, but one thing stuck out when I read your post. you noted that: “Admittedly, I haven’t read the entire DMCA”

    Why not? The original act is only 60 pages long for goodness sake, the wordcount in your blogposts about the DMCA may actually already exceed the number of words in the Act!
    I mention this not to rip on your personally, but rather a problem in general when it comes to the DMCA and other highly technical rules and laws. People tend to read what is being said about the Act, rather than what the Act says itself.
    On the DMCA in particular, I watched Fred von Lohmann take an embarrassing shot to the ego at a congressional briefing when he claimed a specific phrase was in the DMCA. Unfortunately for Fred, a member of the audience stood up and read the section out loud – with none of the text Fred claimed. While I am certain Fred has read the DMCA, and may even keep a copy under his pillow at night, what the bill actually said had become murky in his own mind with the rhetoric surrounding it.
    Fred’s not alone – I’ve certainly munged what I thought a bill says with what it actually says, confusing rhetoric for fact. But when you want to engage in the thoughtful way on a complex issue, doesn’t it make sense to go back and ‘look at the source code’?
    I know it may hard in today’s instant blogging world to take the time to learn the facts, but it might just help.
    Here’s a link

  • http://www.cordblomquist.com Cord Blomquist

    Morgan, perhaps you’re right and I should sit down and read the bill from beginning to end. I’ve read portions of the DMCA several times, especially section 512, the section in question.

    I may even be mistaken saying I haven’t read the entire DMCA. I certainly haven’t read it front to back, but I have read it piecemeal as issues arise. It may be that those little tidbits add up to whole thing.

    But isn’t this to be expected? With so much policy to consider, we have to read what’s relevant at any given time. I’m not motivated to read portions of bills or only sections of some research because of the pressures of blogging, but rather because there’s just so much stuff out there on which to comment. After all, Congress and the various administrations and agencies are working full-time to create more (mostly bad) public policy.

    But unlike a novel or something else that’s meant to be read in series, it’s possible to understand a portion of a bill without reading the whole thing. The section one is interested in is likely not dependent on the rest of the bill’s language, but rather only a few other portions.

  • http://www.cordblomquist.com cordblomquist

    Morgan, perhaps you’re right and I should sit down and read the bill from beginning to end. I’ve read portions of the DMCA several times, especially section 512, the section in question.

    I may even be mistaken saying I haven’t read the entire DMCA. I certainly haven’t read it front to back, but I have read it piecemeal as issues arise. It may be that those little tidbits add up to whole thing.

    But isn’t this to be expected? With so much policy to consider, we have to read what’s relevant at any given time. I’m not motivated to read portions of bills or only sections of some research because of the pressures of blogging, but rather because there’s just so much stuff out there on which to comment. After all, Congress and the various administrations and agencies are working full-time to create more (mostly bad) public policy.

    But unlike a novel or something else that’s meant to be read in series, it’s possible to understand a portion of a bill without reading the whole thing. The section one is interested in is likely not dependent on the rest of the bill’s language, but rather only a few other portions.

  • http://deanlandolt.com Dean Landolt

    In all these vamping about the DMCA, lest we forget about about good ol’ Section 230?

    Sure, it’d be great to see the DMCA go down in flames, but there’s even without it, there are various other safe harbors. I can’t believe this is even still being talked about — there’s simply no merit.

  • http://deanlandolt.com Dean Landolt

    In all these vamping about the DMCA, lest we forget about about good ol’ Section 230?

    Sure, it’d be great to see the DMCA go down in flames, but there’s even without it, there are various other safe harbors. I can’t believe this is even still being talked about — there’s simply no merit.

  • RebeccaOfSunnyBrookFarm

    1201 c part 3 and 4.
    of the act, say that use of copyght material is fine:
    the availability for use of works for nonprofit archival, preservation, and educational purposes;

    `(iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research.
    o0o
    When I discussed technical things in any copyright vt., I always made a bibliography, yet my youtube videos were completely closed down.

    Rebecca.

  • RebeccaOfSunnyBrookFarm

    1201 c part 3 and 4.
    of the act, say that use of copyght material is fine:
    the availability for use of works for nonprofit archival, preservation, and educational purposes;

    `(iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research.
    o0o
    When I discussed technical things in any copyright vt., I always made a bibliography, yet my youtube videos were completely closed down.

    Rebecca.

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