Since Google acquired YouTube for $1.65 billion in November 2006, it has been forced to defend itself and its new acquisition against claims of copyright infringement made by swarms of angry copyright owners. Such cases include Viacom, which has claimed over $1 billion in damages, and the class action matter The Football Association Premier League Limited, et al. v. YouTube, Inc., et al.. Both cases are currently pending in the U.S. District Court for the Southern District of New York. (The current class action complaint is available at the web site set up by the plaintiffs’ attorneys here.)
Central to YouTube’s and Google’s defense in these cases is their claim that, though the YouTube.com site may be hosting audio and video works copyrighted by third parties, that action does not constitute actionable copyright infringement, thanks to Section 512(c) of the Digital Millennium Copyright Act (DMCA), which provides:
A service provider shall not be liable for monetary relief, or, [with some exceptions], for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the 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 [as specified elsewhere in the statute] of claimed infringement…responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
Thus, YouTube and Google claim that, though they are working on technological countermeasures to filter copyrighted material, the YouTube.com site has such a large volume of users that they cannot effectively monitor all of the site’s content for infringing copies. Therefore, until given notice by copyright owners of the presence of infringing works on the site, they cannot be held liable for copyright infringement.
In response, the class action plaintiffs offer a number of arguments attempting to distinguish YouTube and Google’s actions from those of the average, theoretical, safe-harbor-eligible service provider: the defendants do not just “store” information at the direction of users, but rather provide functions to actively assist users disseminate copyrighted materials; the defendants have no policy in place to terminate the accounts of “repeat” copyright infringers; the defendants have failed in the past to timely respond to Section 512 takedown notices; the defendants “have failed to police” the site for the presence of infringing materials; and defendants have failed to employ existing, readily-available techniques to monitor the site and remove copyrighted works. (You can read the complaint here.)
It remains to be seen what success any of the parties will have with any of the above arguments. Perhaps the Supreme Court will consider the issues, at which point we hopefully will receive some much-needed clarification regarding the scope and implementation of the DMCA’s safe harbor provisions. However any of those cases may conclude, expect the pressure on Congress to modify the DMCA – pressure coming from copyright holders, on the one hand, and Internet service providers and content hosts, on the other – to only increase in coming months and years. And rightfully so. Whichever side you may fall on regarding the intent of the DMCA, in light of the fracas surrounding YouTube.com, few would dispute that it is a statute in need of extensive revision or elaboration.