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Legal
US indie man criticises Viacom v YouTube ruling
By CMU Editorial | Published on Monday 5 July 2010
In an interesting op ed piece in the LA Times last week, Rich Bengloff of US independent label association A2IM criticises the recent ruling in the Viacom v YouTube case, and the Times’ subsequent approval of said ruling.
As previously reported, a US judge recently ruled that YouTube was not guilty of infringing the copyrights of Viacom, even though the video site often hosted the media firm’s content without a licence, because of the take-down system they operate, whereby they remove infringing content once they are made aware of it.
The most common interpretation of America’s Digital Millennium Copyright Act is that such a take-down system is enough for services like YouTube to avoid liability for infringement, even if they do actually host infringing content for a time. That interpretation was upheld by the judge reviewing the Viacom v YouTube case.
As the dispute went through the motions, Viacom’s argument focused in the main on the early years of YouTube’s operations, and allegations that the take-down system during that period was too slack to satisfy the relevant provisions of the DMCA. Viacom also alleged that, prior to Google’s purchase of YouTube, the take-down system was deliberately slow, because the service’s owners recognised it was unlicensed content that drove most of their site’s traffic. As it turned out, the judge considering the case didn’t accept either of these arguments.
But when Viacom first sued YouTube, there was another element to the debate. That the US courts’ previous interpretations of the take-down provisions of the DMCA have been totally wrong, because they put all the onus of monitoring sites like YouTube for infringing content onto the content owner, even though it’s the video site that profits from the presence of such content between upload and take-down. Some argue that it can’t be fair to make it the content owners’ responsibility to monitor YouTube.
This is the main gist of Bengloff’s article. He says that the ruling forces music creators to take on a second role as “internet police” just so they are compensated for use of their work. He continues: “YouTube adds 24 hours of new video content each minute of every day, much of it user-uploaded. There is no way for the creator community, in particular the independent labels in the American Association Of Independent Music that simply lack the resources, to monitor the amount of infringement taking place. User-uploaded infringements overwhelm any creators that object to the use of their copyrighted material on sites like YouTube, turning them from creators into full-time monitors that must send take-down notices”.
He concludes: “Rulings such as the recent District Court judgment in Viacom vs YouTube favour internet services over creators and threaten our nation’s rich culture of intellectual property creation. As the distributors of content, the services should be responsible for preventing infringements. They should license the music in the clips posted on their sites and fairly compensate the creators whose works they use to drive their businesses, rather than turning them into monitoring police or hobbyists simply happy to have someone see or hear what they’ve created”.
YouTube would probably argue that their increasingly sophisticated automatic take-down system, whereby copyright owners can log their content and the video site’s filters will theoretically filter out videos that contain that content, reduce the amount of work creators have to do monitoring their site for infringement. There has been little research into how effective said filters are.
Viacom are expected to appeal the recent ruling in their YouTube litigation.
