Viacom v. YouTube
In their complaint, Viacom does not appear to argue that YouTube has ventured outside of the safe harbor by tying its business to copyrighted material; instead it seems that Viacom accuses YouTube of being the âspeakerâ and reproducer of the copyrighted content. If so, the DMCA should make this a laughable argument; while people can potentially see material owned by other copyright holders on the YouTube site, users have placed that content into YouTube, placing YouTube under the umbrella of 512(c).
Furthermore the amount of infringement distinction made in class regarding whether YouTube fails to qualify for the safe Harbor under the (c)(1)(B) financial benefit argument makes little sense. All sites that allow users to direct the storage of material are potential repositories for infringing material. It seems impossible that a for profit site could avoid receiving some financial benefit from the activity of a user that infringes the copyright of another. If a Gmail user that stores copyrighted images as email attachments then Google receives a benefit from the user accessing the site to look at the images because of its advertising services. Geocities gets funding from selling advertisements for banners that will display on user sites that may have infringing activity- the more visits to the page, the more advertising revenue received. Because the entire notion of direct financial benefit breaks down, absent smoking gun evidence of a business model predicated on copyright infringement as a primary revenue device there seems no logical way to differentiate sites. YouTube was designed to host user created content, Gmail is designed to host emails that users are legally entitled to see; the likelihood of one hosting more infringing content than the other seems to be coincidence more than design of neutral use technology. The distinction between such services cannot be controlled by creators and would over discourage new internet ventures.
The moral argument against allowing YouTube into the 512(c) safe harbor seems particularly weak. YouTube itself is a great example of the production of massive amounts of new content for no financial reward because the tools have developed to reduce production and distribution costs. Such user content goes directly against the economic argument for copyright that rewards must be granted or production will not occur. Technology has changed the baseline against which copy protection must be measured, which is somewhat recognized in law. 512(c) is part of the DMCA package that redefines the way that copyright is protected in new technologies; the act also creates a scheme to enhance creatorâs rights through making circumvention of technological opt-in protections illegal. It is entirely consistent that creators are required to actively protect their works when neutral tools are used to infringe and hold harmless potential technological enablers that are not actively seeking infringement by breaking copyright holdersâ technological protections and are unaware of user infringement.
In short, I think the arguments raised to hold YouTube liable for user infringements are not persuasive. Steven Gebelin 16:08, 28 March 2008 (EDT)
Responses
Is it really fair to call something a "neutral technology" when the vast majority of material it hosts is infringing? At some point, people have to intend the natural consequences of their actions, and if 99 out of 100 uploads are infringing, isn't it reasonable for the service provider to assume (or at least have to check to see whether) the 101st is as well? You seem to simply assume that Youtube and Gmail were designed with lawful intentions in mind, but how do you demonstrate that? And how does your argument hold up in the harder cases where there isn't such a proliferation of legitimate user-generated content?