Owning the Intangible/CopyTube 2.0

Copytube 2.0: YouTube and IP Law by Siddharth Dhananjay

Only one thing is impossible for God: To find any sense in any copyright law on the planet. Mark Twain

Introduction

Ever since the original copyright statue was introduced into this world in the year 1709 with the British Statute of Anne, copyright has been both beneficial and detrimental to the intellectual property world. Concepts such as ‘intellectual property’ and ‘copyright’ have always been complex to understand and implement. However, with the digital world expanding every day, IP law and its components are becoming more relevant than ever.

In 2005, the World Wide Web was introduced to YouTube.com and with it came a plethora of copyright troubles. Adding to the already building pile of ownership issues due to the Internet, YouTube was (and still is) a video-sharing website where users could upload any video for others to view, enjoy and comment on. With copyright law allowing the owner of an idea/creative work the right to decide who can have a copy of it, it does not take much to see the immediate threat that YouTube poses to the very definition of copyright. A video of my sister dancing to Beyonce’s ‘Single Ladies’ - however cute as it may be - violates some form of copyright law. Videos like these put together with the fact that YouTube averages a billion views per day reveals the innumerable opportunities for the infringement of copyright law that occur. As Margaret Stewart, YouTube’s Head of User Experience, puts it:

So why has nobody ever solved this problem before? It’s because it’s a big problem and it’s complicated and messy. It’s not uncommon for a single video to have multiple rights owners. There are musical labels, there are multiple music publishers and each of these can vary by country. And there are lots of pieces where we have more than one work mashed together. So [YouTube has] to manage many claims to the same video.

Since its exciting beginning in 2005, YouTube has had to face multiple court cases against large corporations claiming the website responsible for the copyright infringement. Furthermore, who is to blame? Should YouTube be responsible for the mistakes of the average user? Should we accuse YouTube or is the uploader of the fraudulent video to blame? However you look at it, YouTube should never be blamed for copyright infringement and web users should be allowed to upload any form of media onto YouTube for the world to watch because not only does YouTube increase the accessibility of information on the Internet but also promotes the copyrighted content. By simply blocking all ‘misuse’, copyright owners may miss out on new audiences and new revenue streams while the world misses out on new cultural movements and forms of art.

What is YouTube?

YouTube is a “free video sharing web site which lets users upload, view, and share video clips, the service utilizes Adobe Flash technology to display video. The wide variety of site content includes movie and TV clips and music videos, as well as amateur content such as video blogging”. Additionally, “It is the most popular video service today...and with a staggering four years of history, you can call YouTube the granddaddy of them all. The graybeard. The old pro. Yoda or Methuselah”. Thus, we can begin to understand the sheer popularity of YouTube since its release in 2005. With over a billion views of videos on YouTube per day, it is the most popular video sharing website in the universe. This also makes it more susceptible to copyright infringement.

In terms of copyright, user-uploaded content posted on YouTube falls into roughly three categories: copied, appropriative and original. The copied texts are mainly users’ television recordings, music videos, movie clips in bite-sized portions with no intended alteration of the source material. Appropriated clips are mostly copyrighted music or footage that are used in conjunction with some derived work, e.g. amateur music videos as users dance and lip-synch to popular songs in their bedrooms, complex fan re-edits of film footage. Original content would mean any video footage that does not incorporate previously copyrighted works. These include homemade videos, video blogs and personal productions. Of all the three categories, Copied material is usually the most popular content on YouTube - especially for catching up with famous TV moments, political faux pas’s or nostalgic clips - and are also the most trouble in terms of copyright.

Type of Video	Description
Original Content	Does not incorporate previously copyrighted work
Appropriated Content	Uses copyrighted work as a supplement to original content (ex. music track)
Copied Material	Previously copyrighted material with no alteration

In order to try and fend off any copyright infringement issues due to Appropriated or Copied content, YouTube currently runs an advanced Content ID verification system. According to YouTube,

[We are] committed to helping copyright holders find and remove allegedly infringing content from our site. To that end, we have created a Copyright Verification Tool that assists copyright owners in searching for material that they believe to be infringing, and providing YouTube with information reasonably sufficient to permit us to locate that material.

This system, however, does not stop a range of copyright holders in suing YouTube on the basis of copyright theft and infringement.

Recent Cases

Although YouTube has fought many cases on copyright infringement in the past, here are two examples that truly exemplify the complexity of copyright issues that YouTube withholds and why YouTube eventually wins.

Viacom vs. YouTube

In 2007, Viacom appealed in supreme court for copyright infringement, seeking massive damages from YouTube for what Viacom termed its “brazen disregard of the intellectual property laws”. According to the official statement at the time, Viacom had managed to identify 150,000 of its copyrighted clips on YouTube and that, in total, these clips had been viewed more than 1.5 billion times. Viacom was also outraged at having to ask YouTube to take down every single clip, just to see clips of the same material appear again.

After many years in court, however, Google (YouTube’s new owner) and YouTube won the case. The court granted Google's motion for summary judgment and concluded that “YouTube fully qualifies for ‘safe harbor’ protections under the Digital Millennium Copyright Act”.

Youtube vs. Telecinco

In early 2010, local Spanish broadcaster Telecinco sued YouTube for copyright infringement, arguing that it wasn't fair for the rights holder to search the Web for every instance of infringement and therefore YouTube must pay for all the copyright infringing content belonging to Telecinco. The Spanish court however made a ruling “which found that users—not YouTube—are liable for any copyright infringement in their uploaded videos” due to the “safe harbor” principle, similar to the motion of the DMCA.

Fair Use in a YouTube context

As we can see, in both cases, the court ruled in favor of YouTube, posing words such as 'DMCA’ and 'safe harbor’ as their reasons. To clearly understand such complex material, we seek Fred von Lohmann, an American lawyer practicing as a senior copyright counsel at Google. Before joining Google in July 2010, Fred was a senior staff attorney with the Electronic Frontier Foundation, specializing in intellectual property matters. According to Lohmann,

The 1998 Digital Millennium Copyright Act (DMCA) included a number of provisions that Congress hoped would clarify the copyright rules that apply to online service providers. One provision, in particular, was designed to protect Web hosting services that feared they might otherwise be held responsible for the materials posted by their customers....[the] Congress added a new "safe harbor" to the copyright laws, intended to give some breathing room to services that store digital information on behalf of users....The safe harbor works like this: so long as a video hosting service abides by a few rules, it cannot be held liable for monetary damages for copyright infringement, even if the material uploaded by its users happens to infringe. In order to qualify for the safe harbor, a hosting service must implement a "notice and takedown" procedure to respond to infringement notices from copyright owners. So long as the service provider removes material promptly after receiving a "takedown" notice, it cannot be sued for money damages. This strikes a reasonable balance for both sides—copyright owners are able to get material removed promptly by simply sending an email, fax, or letter to the hosting service, and the hosting service need not worry about copyright liability until it has received an infringement notice from a copyright owner.

In short, the DMCA safe harbor pulls YouTube out of the disputes between a filmmaker and a copyright owner asserting rights over uncleared materials included in a film. Thus, YouTube does not thereby become potentially liable for every uncleared clip, song, or image that appears because unlike traditional media hubs, YouTube does not host the copyrighted material but simply acts as a ‘middle-man’ for users to upload and view. Therefore, as long as a video hosting provider maintains a "notice-takedown-counternotice" process - as YouTube does - it is mostly safeguarded from the copyright issues created by any materials that may be included in videos uploaded onto it.

Youtube as a Revenue Stream

Although we have concluded that, through the safe harboring of the DMCA, YouTube should not be liable for copyright infringement, we have still placed the blame primarily on the person that originally uploaded the content. Corporations and copyright holders must, however, start viewing their content on YouTube not as a violation of their rights but as free advertisement and a new revenue stream.

The ‘JK Wedding Dance’ exemplifies this point. Jill Peterson (Grinnell '03) and Kevin Heinz decided to diverge from the traditional walk down the aisle at their wedding and instead shimmied to the altar to the tune of R&B singer Chris Brown’s hit song “Forever.” The video of their dance routine, earned “more than 40 million views” on YouTube. The popularity of this viral hit had another important effect: Chris Brown’s single - an 18 month old song - jumped back to no. 4 on iTunes while sales increased from 3,000 to 50,000 digital copies. If Sony had reported the video to YouTube and had it taken down, they would have missed out on large amounts of revenue and popularity. By allowing the video to stay, Sony (and Chris Brown) jumped back into the music scene. The video even ushered an NBC spoof on ‘The Office’.

Youtube as a Cultural Portal

Even if YouTube videos do allow for new revenue streams through the advertising of the copyrighted content, the ultimate decision of whether to allow or take down the video lies within the copyright holders. By viewing YouTube as a cultural portal, however, we can see that YouTube clips must never be taken down. As Lucas Hilderbrand explains,

Perhaps the most publicized and outrageous single take-down to date came when public affairs network C-SPAN ordered the removal of Stephen Colbert’s tongue-in-cheek speech at the White House Correspondents’ Dinner in May 2006, which had been watched 2.7 million times within forty eight hours on YouTube and which clearly satirized the state of political journalism...Once publicized on YouTube, these events and issues at times get taken up in the mainstream press. In many cases, this feeds the greater good, though at other times a few seconds of video can cause such a scandal that they may ruin a campaign or damage an entire political career. And, rather than diversifying what audiences see, topical viral videos (viral in the sense of epidemic) reinforce the cultural dominance of specific media clips.

Thus, YouTube clips transcend copyright issues and have the capacity to change lives and the way the world works. Additionally, a number of our personal and social memories are made up of of televised news coverage, funny commercials, specific scenes in popular sitcom’s and so on. With YouTube, the world is given a chance to find and store these 'histories’ that have shaped us “and that would otherwise be forgotten in ‘objective’ history”. Thus, while copyright and IP law seems to hinder its credibility, YouTube may actually be moving in the right path. At this point, opposition will question the existence of multiple copies of the same copyrighted video clip. If it is a record of our social history, shouldn't one suffice? YouTube, however, can also be seen as a library or archive of our social and technological past. It has multiple copies of the same instance for the same reasons a library has multiple copies (and multiple publishers) of the same book. “Copyright law was developed to stimulate publication of new works for the edification of culture” and YouTube enables “access to culturally significant texts that would otherwise be elusive and the ability to re-purpose videos in the creation of new derivative works”. In other words, YouTube and its billion subscribers are, in effect, advocating for what copyright is supposed to do.

Conclusion

YouTube is a social revolution in its own respect - “It’s not about the video. It’s about creating a community around the video". When it comes to intellectual property, however, this community seems to be barred and restricted in terms of what can be uploaded and watched. As Lawrence Lessig, copyright expert, argues, “the laws we have were written for a different world in which information moved slowly and depended on a physical medium to go from idea to newsstand or bookshelf. Our legal system is still struggling to adapt to a post-YouTube world...”.. But even with the legal system that exists today, neither YouTube nor its users must be charged with copyright infringement. While YouTube is safe harbored under the Digital Millenium Copyright Act of 1998, YouTube’s users not only help promote the copyrighted content they upload but also add to the cultural history of humankind.