“Only a moron would buy YouTube.” - Mark Cuban
Internet and media darling, YouTube, Inc. (“YouTube”), has received a copyright wakeup call of sorts when United States Federal District Judge Florence-Marie Cooper of the Central District of California denied its Partial Motion for Summary Judgment against Plaintiff Robert Tur. Robert Tur is a helicopter pilot and photojournalist who does business under the name Los Angeles news Service. Tur owns the copyrights to and sells a variety of news video to television stations, cable channels, motion pictures and other media outlets. Tur is best known for his award winning coverage of the 1992 Los Angeles riots and the beating of truck driver Reginald Denny. Tur sued YouTube for copyright infringement under 17 U.S.C. § 501 and unfair competition claiming that the streaming video website posted and distributed his video coverage without his consent.
YouTube, which is owned by Google, Inc., raised the affirmative defense of Safe Harbor Protection under the Digital Millennium Copyright Act (the “DMCA”), 17 U.S.C. § 512(c), and sought a determination by the Court regarding the same. Specifically the DMCA provides four distinct safe harbors, but in order pass judicial muster, the Defendant must first meet the Conditions for Eligibility as set out in Section 512(i). Section 512(i) states:
The limitations of liability established by this section shall apply to the service provider only if the service provider:
(A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers; and
(B) accommodates and does not interfere with standard technical issues.
Next, YouTube must also meet the requirements of Section 512(c)(1). Section 512(c)(1) states:
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 storage and direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider -
(A) (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
YouTube has long alleged that it does not “directly” receive financial benefit from the videos posted on its website. However, YouTube also argued to the California Court that it does not have the right or ability to control the infringing activity. Judge Cooper rightfully noted in her opinion, that “As the statute makes clear, a provider’s receipt of a financial benefit is only implicated where the provider also ‘has the right and ability to control such activity.’” 2007 WL 1893635 *3 (C.D. Cal June 20, 2007). Judge Cooper continued, “As such, if YouTube does not have the right and ability to control the alleged infringing activity, the Court need not engage in the ‘financial benefit analysis.” Id.
The Central District of California has long held that the “right and ability to control” infringing activity must be something more than just the ability of a service provider to remove or block access to materials posted on its website or stored in its system, it requires an an ability to limit or filter copyrighted material. Therefore, YouTube’s own admission that it did not have the ability to control the alleged infringing activity persuaded the Court that YouTube did not satisfy the Safe Harbor requirements under Section 512(1)(B) and therefore denied its Partial Motion for Summary Judgment as a matter of law.