OK, this is all a bit complicated, so do bear with me. There was an interesting development in the world of YouTube copyright litigation this week which doesn't really impact on the major outstanding YouTube lawsuit, that being pursued against the Google-owned video site by MTV owner Viacom, but which would be relevant if a British broadcaster were to begin similar legal proceedings.
As previously reported, various content owners are suing YouTube for copyright infringement because at any one time their servers host all sorts of content that has been uploaded by punters without a copyright owner's permission. Because YouTube have a policy of removing this content when made aware of it by a content owner, they argue they are operating within US copyright laws.
Some content owners, however, argue it is unfair that the onus is on them to spot infringing content - because they have to invest in whole departments to monitor the video site - and argue that YouTube themselves have a responsibility to ensure no infringing content ever goes live on their site. YouTube, of course disagree, but would also point out that they have recently launched a new technology system that, in theory at least, blocks content that has been registered by a copyright owner who does not want their content to appear on the site.
Many content owners who have kicked up a fuss have ultimately reached a licensing deal with the video website before any litigation has been launched. However, some significant lawsuits are ongoing - in particular the aforementioned Viacom lawsuit, and a class action suit that names a number of content owners as plaintiffs, though the highest profile is the English Premier League.
And it's the latter lawsuit that has seen a development this week - though not on the key point of whether or not YouTube is liable for infringing content uploaded to its site, despite its 'tell us and we'll remove it' policy - but on the matter of damages and copyright registration.
Copyrights in America have to be registered in order to get legal protection, while here in the UK and elsewhere a copyright exists as soon as a piece of original work is created, it never needs be registered anywhere. Meanwhile, a copyright enjoys protection in territories other than the one where it was created thanks to various international agreements between countries, in particular the Berne Convention.
These two facts present some interesting challenges in the US, because content owners based there have to go to the effort of registering their copyrights by a set deadline to get legal protection, but content owners aboard do not. And it's more complicated than it need be because some elements of US copyright law theoretically, or arguably, only apply to registered copyrights - which means those elements only apply to native copyrights, or international copyrights where the content owner has registered them in the US.
I'm telling you all this, because this is what was being discussed this week in relation to the English Premier League lawsuit against YouTube. It's important because they are suing for 'statutory damages' for the infringement they claim YouTube has committed by allowing some of its content to be posted on their website.
This is the easy damages option if you're suing for infringement because it allows the court to order the infringer, if found guilty, to pay a set fine per piece of infringed content - anything up to $150,000 per infringement. The other option is for the content owner to sue for 'actual damages', but then they need to demonstrate to the court actual losses or gains that have occurred as a result of the infringement.
When a video is posted on YouTube that's quite hard to do. First the consumers haven't paid anything to watch it and Google's short term ad revenues will be modest, though arguably they gain long term brand equity from carrying the content. Meanwhile, on the other side of the equation, it's nigh on impossible to prove that the presence of the infringing content on the video site affected the audience figures of those TV networks and websites that have paid to show the footage, let alone calculate how that would impact on those media's ad revenues. It's not really an avenue you want to go down - which is why most content owners, including the record companies, sue for statutory damages. Much easier to say "we'll have $150,000 per infringement please your honour".
This is all important because the US courts this week ruled that statutory damages can only be claimed for copyrights registered in the US. Which would mean content owners outside of America, while able to protect their copyrights in the US courts, are not allowed to use the easier method for calculating damages.
Lawyers for the Premier League argued that making that distinction violated the aforementioned Berne Convention which says that the enjoyment and exercise of copyright "shall not be subject to any formality". But US District Judge Louis Stanton disagreed. According to Out-Law.com the judge said that US lawmakers had already deemed that interpretation of US copyright law as being compatible with the Convention and, anyway, "even if Section 412 were in conflict with the Berne Convention, Section 412 would be binding. The Berne Convention has no effect on US law unless Congress so provides".
The ruling probably isn't really a big blow to the Premier League or many of the other plaintiffs tagged to this litigation, which includes some music publishes. Firstly because some of those plaintiffs, the music publishers for example, will most likely have registered their copyrights in the US anyway.
But also, in the Premier League's case, because of an exception to the rules regarding infringement of live recordings - ie when users take clips of live broadcasts off the TV and immediately post them onto YouTube. There is an exception here because it would be impossible for the Premier League to register this kind of content in advance of infringement, because it doesn't exist. US law says that if the owners of such content issue an 'advance notice of potential infringement' relating to such recordings then they get the same protection as if they had registered the content - meaning they can claim for statutory damages.
As most of the content the Premiere League is suing over falls into this category, and as the judge ruled the email warnings they had sent YouTube about that content could be deemed as 'advance notices', the link between registration and statutory damages is not so relevant here. Nevertheless, the Premiere League's US lawyers say they might appeal this week's ruling anyway because, while it only applied to the minority of their own content, they say the ruling presents a dangerous precedent of allowing US copyright law to favour native copyrights over those protected by the Berne Convention.
There, told you it was a bit complicated. I know, let's quickly move on to a much simpler drink driving case.