Social Networking and Video Web Sites:
MySpace and YouTube Meet the Copyright Cops
by Stephanie C. Ardito, Principal, Ardito Information & Research, Inc.
Since the dawn of the Internet, many of us have marveled at the groundbreaking novelty of Internet sites that seem to appear from nowhere, gain rapid popularity, and become staples on everyone’s set of bookmarks. The founders of these sites do not usually come from traditional content providers, so the phenomenon of Web-based services such as Yahoo!, Amazon, Travelocity, MapQuest, and Google continue to amaze us.
And just when we think there can’t possibly be any more innovation, along come social networking and video-sharing sites such as MySpace and YouTube and their hundreds of imitators.
As these companies take off and continue to soar, inevitably, it seems, the copyright infringement lawsuits begin, often initiated by the traditional media powerhouses which feel threatened by the upstarts’ popularity. The truly groundbreaking Internet companies manage to survive. Negotiations and settlements are worked out, conglomerates with bottomless financial pockets come to the rescue, or deep-rooted media companies finally accept the need to change their business paradigms or lose their considerable customer base.
The latest round of battles is occurring within the music and movie industries. The background and conflicts are no different than what we’ve seen before. Ten years ago, the scientific, technical, and medical (STM) publishers resisted placing full-text articles on the Internet. These publishers worried about losing expensive annual subscriptions if individual articles were easily accessible for purchase, as well as about how to collect royalties on multiple copies of articles circulating on the Web. Although struggling with customer demand for replication of Web services inspired by Internet technology, publishers finally figured out how to make their content widely and instantly available. Now publishers struggle with open access and end users (both authors and readers) going directly to the Web. The music and movie industries are bound to do the same.
The New Reality
A former employee of mine will graduate from music school this year. His dream is to earn a living as a jazz drummer. Recently, he created a MySpace page, listing upcoming band engagements, announcing his availability as a private instructor, and providing videos and audio clips of his live performances. There are no copyright notices on the page, but Matt shared his opinion that the original purpose of MySpace was to make budding artists known. If his videos and music show up somewhere else on the Internet or if users download the clips, Matt doesn’t care. Copyright won’t become an issue for him until he’s famous. His major concern now is to get his name known.
As for school policies and educational efforts informing kids about copyright, teachers at my nephews’ and niece’s high schools and colleges do not discuss the ramifications of downloading content from the Internet. English and computer science teachers who require electronic copies of papers talk to their students about plagiarism and warn students that their compositions are being run against the Turnitin [http://www.turnitin.com/static/index.html] software to verify originality.
However, colleges and universities may soon intensify instructional efforts to enlighten students about copyright, including possible litigation initiated around the illegal downloading and storing of videos and music. On Feb. 28, 2007, the Recording Industry Association of America (RIAA) announced another round of lawsuits against college students for copyright infringements. One campus being targeted is Ohio University, where one of my nephews attends!
Regarding my own personal experience with the social networking sites, I will admit that I’m a frequent user of YouTube. A while back, I saw a VH1 documentary on Meat Loaf, in which the television show played clips from Meat Loaf’s Bat Out of Hell video. Being a fan, after the program ended, I immediately went to YouTube and looked for the full videos of a couple of songs from the album — “You Took the Words Right Out of My Mouth” and “Paradise by the Dashboard Light” (a particular favorite of mine). I was tempted to download the videos to my computer so I could view them whenever the mood struck, but my niece told me that the videos remain on YouTube “forever,” so I wouldn’t have a problem finding them whenever I wanted. Since I still worry that someday the copyright police will knock on my door, take my computer, and lock me up in copyright jail, I listened to my niece’s advice and did not download the videos.
However, my niece’s assertion that videos stay on YouTube into infinity isn’t true. I’m also a celebrity news junkie. Earlier this year, I was intrigued about the scuttlebutt surrounding the Justin Timberlake/Scarlett Johannsson video, “What Goes Around … Comes Around.” I had seen clips of a steamy swimming pool scene from the video and immediately went to YouTube to find it. And there it was. In fact, there were several uploads of the video from a number of the site’s users. I watched the entire video to see what the fuss was about and told my neighbor about it. Of course she asked me for the URL, but when I went back to look for the video on YouTube, it had vanished. Since Sony, the legal distributor, allows “sharing” of the video directly from its Musicbox Web site, I emailed the URL to my neighbor (for those interested, http://musicbox.sonybmg.com/video/justin_timberlake/what_goes_around_comes_around_preview). I suspect that Sony must have warned YouTube to take the illegal copies off its site.
So, what prompts my nephews, niece, colleagues, and me to go to MySpace and YouTube to view grainy, unprofessional, uploaded videos and audios recorded on camera phones and camcorders versus searching the music label or movie studio Web sites for the originals? The answer lies in the ease and convenience of MySpace and YouTube. Without much fuss and no required registration, you can quickly identify videos of interest, see which ones are the most popular with others (both sites rank videos by the number of hits received, similar to Amazon’s “Top Sellers”), click on the videos you want to watch, and, within a matter of seconds, have them appear on your screen. In comparison, the traditional media companies often require users to download special software to view videos and click through several pages of terms and conditions before gaining access. Even when that access is finally granted, you may sit for several minutes waiting for the videos to download to your screen. Since consumers want instant gratification, the established players need to learn some lessons from MySpace and YouTube. So, let’s review the genesis and appeal of these two Web sites.
Founded in February 2005, YouTube [http://www.youtube.com] is typical of many startup Internet companies. It originated in a garage, followed quickly by significant funding from a venture capital company, in this case, Sequoia Capital. At first, users shared personal videos, but as the Web site’s popularity grew rapidly, YouTube contracted with traditional content providers (television and movie studios and record labels) to load commercial clips. In less than a year, the video and user statistics were staggering. The company claims that 65,000 videos are uploaded daily, with consumers watching more than 100 million videos a day. Twenty million unique users, mainly in the 18–49 age range, view the Web site monthly.
In October 2006, Google, also initially funded by Sequoia Capital, bought YouTube for $1.65 billion. YouTube has struggled to find advertising revenue, so it should benefit from Google’s ownership and experience in generating revenue. Although YouTube faced some copyright legal challenges from the music industry prior to Google’s purchase, lawsuits seemed to have multiplied since the takeover. Some industry analysts speculate this litigiousness stems from the arrival of Google’s deep financial pockets. For now, Google doesn’t seem deterred by the legal wrangling.
The content on the YouTube Website, except all User Submissions (as defined below), including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (“Content”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to YouTube, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Content on the Website is provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. YouTube reserves all rights not expressly granted in and to the Website and the Content. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, or distribution of User Submissions of third parties obtained through the Website for any commercial purposes. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of the YouTube Website or features that prevent or restrict use or copying of any Content or enforce limitations on use of the YouTube Website or the Content therein.
As with traditional content providers who negotiate author contracts, those who upload original videos “grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Web site and YouTube’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the YouTube Web site (and derivative works thereof) in any media formats and through any media channels.”
But YouTube goes one step further than traditional publishers and database producers by granting “each user of the YouTube Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service.” In other words, as I interpret this clause, those who upload videos they have created own the rights to their works. In the publishing world of newspapers, journals, and books, authors generally turn over their rights to the publishers, who then own the authors’ works into perpetuity.
In a separate document, “Copyright Tips” [http://www.youtube.com/t/howto_copyright], YouTube admits: “The most common reason we take down videos for copyright infringement is that they are direct copies of copyrighted content and the owners of the copyrighted content have alerted us that their content is being used without their permission.” YouTube mentions “fair use,” providing links to four Web sites that outline the factors considered to establish fair use status: U.S. Copyright Office [http://www.copyright.gov/fls/fl102.html]; Stanford University Libraries and Academic Information Resources [http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9]; Copyright Web site LLC [http://www.copyrightWebsite.com/Info/Law/FairUse.aspx]; and the Chilling Effects Clearinghouse [http://chillingeffects.org/fairuse].
MySpace [http://www.myspace.com] was founded in 2003 as a social networking Web site. In 2005, Rupert Murdoch’s News Corporation acquired MySpace as part of a $580 million acquisition, with the “lifestyle portal” now a unit of Fox Interactive Media Inc. Users must be at least 14 to join MySpace (one must be 13 to access YouTube), but I’m not sure how this is enforced on either site.
The Agreement includes a “partial” list of 27 prohibitive content activities. Illicit activities include promoting an “illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files.” Advertising and paid commercial activity is also prohibited. As with YouTube, MySpace includes several paragraphs on liabilities and disclaimers.
The Agreement is dated Oct. 25, 2006, coinciding with MySpace’s announcement that the company had implemented a filtering system to identify copyrighted materials posted by its users. The audio fingerprinting technology came from Gracenote [http://www.gracenote.com], a California-based company specializing in the organization of digital music. Music files uploaded by MySpace users are run against Gracenote’s MusicID software and Global Media Database to detect copyright infringements.
In February 2007, MySpace announced the implementation of a second program to block videos containing copyrighted content posted by its users. In this case, digital fingerprinting technology licensed from Audible Magic [http://www.audiblemagic.com/index.asp] is used to screen and block videos.
YouTube seems to lag behind MySpace in applying filtering technology. The company hoped to introduce a new mechanism to filter out unauthorized videos by the end of 2006. On Feb. 22, 2007, the Mercury News reported that Google had signed a deal with Audible Magic to provide its filtering technology on the YouTube Web site. However, YouTube and Audible Magic had not directly issued an “official” statement about such a deal as of that date, nor would either company comment.
Storms of Litigation
On Oct. 11, 2006, The Wall Street Journal interviewed two copyright experts about the Google purchase of YouTube: John Palfrey, a Harvard University law professor and director of the Berkman Center for Internet & Society [http://cyber.law.harvard.edu/home], and Stan Liebowitz, an economics professor at the University of Texas at Dallas and director of the Center for the Analysis of Property Rights and Innovation [http://som.utdallas.edu/capri]. Mr. Palfrey said, “Google is no stranger to copyright risk. Much to their credit, Google has not let a lack of precision in the copyright context stop them from taking on major projects. The YouTube deal is no exception. As with Google News and the Libraries Project, the YouTube technology and service is going to make some people — competitors and people elsewhere in the value chain alike — somewhat unhappy.”
Mr. Liebowitz agreed with Palfrey: “Google is no stranger to these issues. Its attempt (the library project) to copy all the books in existence without getting copyright permission in advance has led to a lawsuit against it by copyright owners. Perhaps there are economies of scale in fighting such lawsuits. I also agree that YouTube is no Napster. Nevertheless, whether there will be copyright litigation depends on several issues. Although the purpose of YouTube might be to encourage home-grown creative endeavors, some portion of YouTube files have been pure copyrighted files with no home-grown component, although it appears that YouTube has taken them down when requested.”
Palfrey expressed his opinion that if users agree to YouTube’s Terms of Service agreement — “not to post anything that violates anyone else’s copyright,” and YouTube removes copyrighted works immediately that come to the company’s attention — then YouTube and Google should be protected by the DMCA if lawsuits are filed. If the companies ignore or don’t respond to claims of infringement, he considered litigation inevitable.
In fairness to YouTube, the company has quickly responded when notified about copyrighted materials, not only from media conglomerates, but also from individual directors and writers. For example, in July 2006, journalist Robert Tur sued YouTube for posting a video he had shot of a white truck driver named Reginald Denny being dragged out of his truck and beaten during the Los Angeles riots in 1992. When YouTube learned of the lawsuit, the video was immediately removed. Shortly before Google’s purchase of YouTube, the Japanese Society for Rights of Authors, Composers and Publishers notified the company of nearly 30,000 illegal clips floating around the YouTube Web site. Again, when alerted, YouTube removed the offending clips.
Preceding the sale of YouTube to Google, a flurry of announcements appeared regarding potential content deals with Sony, Bertelsmann, Universal Music, and CBS. While the CBS talks ultimately broke down, YouTube brokered a deal with the British Broadcasting Company to load selective BBC news and entertainment content on the company Web site. Analysts forecast that Google’s significant financial resources would prompt an immediate upsurge in copyright litigation after the company’s takeover of YouTube. In fact, as this issue of Searcher went to press, lawsuits were being announced on a daily basis, so many, that it was difficult for me to keep up. For example, on Jan. 18, 2007, competitor News Corp. subpoenaed YouTube for the identity of users who uploaded full episodes of Fox’s TV show 24 before the episodes debuted. Apparently, YouTube gave in to Fox’s pressure and identified the users.
In addition, Viacom Inc. — which owns MTV, Nickelodeon, Comedy Central, and Paramount, not to mention, the immortal I Love Lucy and Perry Mason TV series — ordered YouTube to remove more than 100,000 video clips. Viacom had been in discussions with YouTube to keep the videos on the Web site. Some critics speculated that Viacom may have demanded the removal of the videos to force YouTube into a quicker royalty arrangement, rather than let negotiations drag on indefinitely. Since Comedy Central’s The Daily Show with Jon Stewart is among the most heavily viewed videos on the YouTube Web site, industry analysts thought Viacom’s strategy would compel YouTube to immediately agree on terms favorable to Viacom. As of this writing, YouTube and Google had not budged.
Shortly after the breakdown in talks, on March 13, 2007, Viacom filed a lawsuit against Google and YouTube, seeking more than $1 billion in damages for “160,000 unauthorized clips of Viacom’s programming … viewed more than 1.5 billion times” on the YouTube Web site. Some critics commented that Viacom not only wants control over its media programs, but
doesn’t like its materials displayed along side the work of amateurs on YouTube, mainly because the unprofessional videos turn off advertisers. However, the real truth may lie in the threat Viacom is experiencing over YouTube’s popularity and the significant Google resources supporting the Web site. Interestingly, in the month prior to the lawsuit announcement, Viacom signed a licensing deal with Joost [http://www.joost.com], a company whose technology will be used to load videos from Viacom’s television networks onto the Internet. One has to wonder if Viacom entered into the Joost deal knowing that the lawsuit against Google and YouTube would follow. The Viacom lawsuit will be the one to watch, as the company will argue that YouTube had direct knowledge of the illegal videos and profited from the postings (i.e., most likely citing Section 512 from the DMCA safe harbor clause).
In an ironic twist, on March 22, 2007, the Electronic Frontier Foundation (EFF) sued Viacom on behalf of MoveOn.org and Brave New Films. In August 2006, the two companies had created and uploaded a video, Stop the Falsiness, to YouTube. The video parodied The Colbert Report, another popular Comedy Central program owned by Viacom, and included clips from the show as well as original interviews. EFF argues that Viacom unlawfully asked YouTube to remove the video parody, which EFF claims was protected by free speech and fair use. Google and YouTube are not named in the lawsuit.
Another conglomerate, Vivendi (and its subsidiary, Universal Music Group), has received frequent press coverage for its aggressive tactics in filing copyright infringement lawsuits against social networking and video Web sites. The company continues to pressure MySpace and YouTube to pay royalties, either by forcing users to “pay-per-play” or by sharing ad revenues. These tactics are being blasted by critics, who write that customers are alienated when media companies fail to adopt to new technology.
As an aside, in early February 2007, a privately held video-sharing company called Veoh Networks, Inc. was formed by media giants Time Warner and Michael Eisner (former Disney Chairman and CEO) and various investment firms. In a bit of irony, considering the corporate backgrounds of the founders, Veoh found itself facing copyright infringement lawsuits less than a week after its video Web site debuted.
Watching and Waiting
Some media giants are choosing to stay out of the copyright fray but continue to cautiously watch legal developments at their competitors. For example, late in 2006, Warner Music chose not to sue YouTube for uploading songs and videos, but rather, negotiated a deal to share revenue from ads placed next to Warner material. Warner’s strategy differed sharply from the approach employed against Napster nearly 6 years ago. In that case, a class action suit from a number of music companies shut down Napster.
Commenting on the Viacom lawsuit against YouTube, Paul Cappuccio, Time Warner’s general counsel, expressed his opinion that “companies should reach a compromise … We are still of the opinion that we can negotiate a business solution with YouTube that will efficiently identify and filter out unauthorized copyrighted works while also allowing us to license copyright works to them for a share of revenue.”
Some conglomerates decide to sit back because they have found themselves between a rock and a hard place. Illegal videos and music give them exposure and may help to generate sales. Sound familiar? Years ago, information professionals pleaded with traditional publishers to allow access to individual articles and to consider alternative forms of electronic advertising to generate revenue, foreseeing that money (and profits) could be made without paying for annual subscriptions. Back then, we called the publishers dinosaurs. Now, the media conglomerates are being labeled with the same term.
Personally, I think the media giants will eventually calm down and learn to work with social networking and video Web sites. Otherwise, these outlets risk losing their substantial customer base, not to mention access to revolutionary marketing strategies and technologies that only upstart Internet companies can seem to initiate. For example, YouTube is piloting some innovative advertising programs that may allay the fears of the conglomerates, while at the same time, rewarding them with revenue. One program, called “participatory video ads,” is being embraced by companies such as General Motors, Adidas, and Coca-Cola. These firms have purchased YouTube video space to spotlight their brands. As with personal videos placed on the Web site, users can rate and comment on the commercially made videos.
In a separate marketing development, on Feb. 22, 2007, Fox Interactive Media (owner of MySpace) announced that it had acquired Strategic Data Corporation. Like DoubleClick [http://www.doubleclick.com/us], Strategic Data is a digital advertising company. Fox hopes to use Strategic Data’s systems to persuade more users to click on ads placed on the MySpace Web site.
Until the media giants simmer down, however, MySpace and YouTube will face legal battles over copyrighted music and movie clips for some time to come. The confrontations will be fierce, but Google and News Corp. have significant financial resources and large legal staffs to handle the lawsuits. In fact, after its takeover of YouTube, Google set aside more than $200 million (funded through stock held in escrow) to cover future litigation costs.
As we went to press, News Corp. and NBC Universal announced plans to launch a legally pure, video distribution network some view as a potential competitor to YouTube. Scheduled to launch this summer, the new service will stock an online video site with masses of TV shows and videos, plus clips that users will be allowed to modify and share. Partners in the project already include the usual Google competitors — AOL, MSN, and Yahoo!. Television library content will be advertiser-supported and free to users. Some outlets will support mashups and online communities. Downloading movies will require user payments.
Digital Rights Management and the Steve Jobs Controversy
Like the digital object identifier (DOI) technology developed by publishers to tag and track electronic copyrighted works, media companies have created features in digital rights management (DRM) technology to make it difficult for users to copy or transfer audio and video files. Generally, technologies to thwart file sharing have failed, with media companies relying on their own personnel to scan the Internet for unauthorized copies. Even after threatening the offending parties, content providers continue to struggle in tracking down the same illegal copies likely to appear elsewhere on the Web.
On Feb. 6, 2007, Apple’s Steve Jobs posted an essay on his company’s Web site [http://www.apple.com/hotnews/thoughtsonmusic] entitled “Thoughts on Music.” Jobs proposed that digital rights management (DRM) software preventing music reproduction and piracy be eliminated, so that songs could be played on any device. Apple licenses music rights from the “big four” music companies: Universal, Sony BMG, Warner, and EMI. According to Jobs, these companies “control the distribution of over 70% of the world’s music.” When Apple started its iTunes service, the company “was able to negotiate landmark usage rights at the time, which include allowing users to play their DRM protected music on up to 5 computers and on an unlimited number of iPods. Obtaining such rights from the music companies was unprecedented at the time, and even today is unmatched by most other digital music services. However, a key provision of our agreements with the music companies is that if our DRM system is compromised and their music becomes playable on unauthorized devices, we have only a small number of weeks to fix the problem or they can withdraw their entire music catalog from our iTunes store…. So far we have met our commitments to the music companies to protect their music, and we have given users the most liberal usage rights available in the industry for legally downloaded music.”
The controversy with Jobs’ posting comes with his proposal to completely abolish blocking DRM protections. He wrote: “Imagine a world where every online store sells DRM-free music encoded in open licensable formats. In such a world, any player can play music purchased from any store, and any store can sell music which is playable on all players.” Jobs justifies such an open source solution because he believes that DRM systems have never worked to prevent music piracy. He claims that music CDs are completely unprotected, so that “all the music distributed on CDs can be easily uploaded to the Internet, then (illegally) downloaded and played on any computer or player. In 2006, under 2 billion DRM-protected songs were sold worldwide by online stores, while over 20 billion songs were sold completely DRM-free and unprotected on CDs by the music companies themselves. The music companies sell the vast majority of their music DRM-free, and show no signs of changing this behavior, since the overwhelming majority of their revenues depend on selling CDs which must play in CD players that support no DRM system…. Convincing [the big four] to license their music to Apple and others DRM-free will create a truly interoperable music marketplace.”
Many music industry analysts agree with Jobs — that nothing will prevent piracy. Those who buy iPods are not purchasing many DRM-protected recordings. Rather, consumers purchase music on CDs and download individual tracks into the format of their choice on the iPods. Jobs justified his position on DRMs by providing statistics on what the iTunes store sells: “Today’s most popular iPod holds 1000 songs, and research tells us that the average iPod is nearly full. This means that only 22 out of 1000 songs, or under 3% of the music on the average iPod, is purchased from the iTunes store and protected with a DRM. The remaining 97% of the music is unprotected and playable on any player that can play the open formats. It’s hard to believe that just 3% of the music on the average iPod is enough to lock users into buying only iPods in the future. And since 97% of the music on the average iPod was not purchased from the iTunes store, iPod users are clearly not locked into the iTunes store to acquire their music.”
On the flip side, those opposed to Jobs’ proposal to eliminate DRM protections point out the pressure Jobs faces from European fair trade laws that will soon mandate making iTunes music available to non-Apple devices. If an unrestricted MP3 format is adopted across the music industry, any digital device could download music from any source. Looking to the future, Jobs may envision expanding the iTunes concept to movies, TV programs, electronic books, and other media. With DRM blocking eliminated, content from a wide range of formats could be downloaded to any digital device.
On Feb. 15, 2007, Rob Pegoraro, a reporter with The Washington Post, succinctly summarized all the fuss whirling in the entertainment industry:
My thoughts exactly!
The [DRM] technology can still serve a role in online music or movie rental services, which have drawn far fewer customers than stores like iTunes, but for purchases it does too little to justify its costs. In practice, it only stops copying by the unmotivated, the over-scheduled or the inexperienced — the people most likely to buy a song or movie online as long as they can do so quickly, easily and cheaply. In the music industry, a growing number of outlets beyond the big-name companies, from tiny indie-rock operations to the Philadelphia Orchestra and the Smithsonian Institution’s Folkways label, have realized the futility of copy-restriction software and now sell digital downloads in open, unrestricted formats. At this point, this all amounts to little more than expensive psychotherapy for Hollywood executives. It’s the height of arrogance for them to keep sending us the bill.
An Informal Teenage Survey
I have three nephews and a niece who have been computer junkies since they were toddlers. All four teenagers registered on the MySpace and YouTube Web sites when these sites first appeared on the Internet. One nephew is into extreme sports and searches YouTube for skateboarding, snowboarding, and skiing videos. He even makes his own videos and uploads them to YouTube or sells them to competing Web sites. His brother engages in traditional sports — basketball, baseball, and volleyball — and looks for videos on games played by competing high school teams. My third nephew is a history buff and socializes with kids with similar interests. My niece sings in a couple of choruses and explores the Web sites for Broadway musical videos or high school musical productions.
I asked all four kids if they had ever heard of copyright and was pleased to learn that they had. However, I was amused to learn that all four believed that they violated copyright law when they viewed a video or listened to a song they know was illegally uploaded to a Web site. I told them that watching or listening to illegal content is not a problem. It’s uploading or downloading videos and music to their computers or other Web sites that represents commission of an illegal act. One of my nephews told me his school blocks the MySpace and YouTube Web sites, but students have figured out “a loophole and cracked the code” in skirting the blocking software. That eliminates the problem of accessing the Web sites through the school’s computers. This same nephew wrote me that it’s possible to upload illegal copies of videos and songs by using the file-sharing programs LimeWire [http://www.limewire.com/english/content/home.shtml] or Morpheus [http://morpheus.com].
The nephew who makes videos doesn’t care if an Internet user downloads his videos, uploads them to other Web sites, or even modifies them. I asked him if he didn’t want to protect his copyright and creativity, but he really has no interest. As a matter of fact, he feels honored if someone uploads his videos to other Web sites, even if the videos are altered in the process.
Interpreting the Digital Millennium Copyright Act (DMCA)
The DMCA [http://www.copyright.gov/legislation/pl105-304.pdf] includes a clause — § 512. Limitations on liability relating to material online — commonly referred to as a safe-harbor provision. YouTube, MySpace, and other community Web sites seem to invoke the clause whenever faced with threats of lawsuits from copyright holders. The clause states that if “the material is made available online by a person other than the service provider” and the service provider “responds expeditiously to remove, or disable access to, the material that is claimed to be infringing upon notification of claimed infringement,” then the “service provider shall not be liable for monetary relief.”
Music companies and movie studios quibble over the DMCA’s “take-down” clause, claiming that the community sites are well aware of the copyrighted materials and do nothing to track infringing works. And there’s another problem. Section 512 lays out four prerequisites — similar to the Fair Use provisions in the Copyright Act — that Web sites must meet in order to invoke the safe harbor provision. One of the prerequisites is that the service provider can’t benefit financially from posted content. In short, if YouTube and Google or MySpace and News Corporation place paid advertising next to videos, the safe harbor provision may not apply.
Popular Video-Sharing Web Sites
Stephanie C. Ardito is principal of Ardito Information & Research, Inc. Her e-mail address is email@example.com.
Adegoke, Yinka , “Universal Music pressuring YouTube, MySpace,” Reuters News, Sept. 13, 2006.
Adegoke, Yinka , “Universal Music sues MySpace over song copyrights,” Reuters News, Nov. 17, 2006.
Ackerman, Elise , “Google to start filtering YouTube videos,” Mercury News, Feb. 22, 2007.
Baumann, Michael , “Going down the YouTubes,” Information Today, September 2006, p. 56.
Berkowitz, Eric , “Reporter sues YouTube over copyrights,” Associated Press Newswires, July 18, 2006.
Brynko, Barbara , “What shook information technology in 2006?” Information Today, December 2006, p. 1.
Chaffin, Joshua , “MySpace and Universal on course for landmark battle over copyright,” Financial Times, Dec. 5, 2006, p. 6.
Chaffin, Joshua and Francesco Guerrera , “New NBC chief attacks YouTube over copyrighted content,” Financial Times, Feb. 7, 2007, p. 21.
Cloud, John , “The Gurus of YouTube,” Time, Dec. 16, 2006 [http://www.time.com/time/magazine/article/0,9171,1570721,00.html].
Cohen, Noam , “YouTube is purging copyrighted clips,” The New York Times, Oct. 30, 2006, p. 8.
Deagon, Brian , “Copyright challenges YouTube but avoids legal issues,” Investor’s Business Daily, Oct. 19, 2006, p. A4.
Del Conte, Natali , “Will Google pay for YouTube infringements?” PC Magazine, Oct. 10, 2006.
Delaney, Kevin J. , “YouTube model is compromise over copyrights,” The Wall Street Journal, Sept. 19, 2006, p. B1.
Delaney, Kevin J .,”YouTube strikes deal to host BBC clips,” The Wall Street Journal, March 3, 2007, p. A3.
Delaney, Kevin J. and Matthew Karnitschnig , “TV industry clouds Google’s video vision,” The Wall Street Journal, Feb. 21, 2007, p. A1.
Delaney, Kevin J. and Matthew Karnitschnig , “Viacom v. Google could shape digital future: Lawsuit centers on 1998 Act protecting Net copyrights,” The Wall Street Journal, March 14, 2007, p. B1.
Delaney, Kevin J., Ethan Smith, and Brooks Barnes , “YouTube finds signing rights deals complex, frustrating,” The Wall Street Journal, Nov. 3, 2006.
“Does YouTube make Google a big target for copyright suits?” The Wall Street Journal, Oct. 11, 2006 [John Palfrey and Stan Liebowitz interview].
Electronic Frontier Foundation, “Free speech battle over online parody of The Colbert Report — MoveOn, Brave New Films sue Viacom for illegal takedown of YouTube video,” March 22, 2007 [http://www.eff.org/news/archives/2007_03.php#005176].
Gohring, Nancy , “Music exec rebuts Apple’s critique of DRM: Warner Music CEO defends use of protection technology after criticism by Jobs,” PC World, Feb. 14, 2007.
Graham, Jefferson , “Google takes hits from YouTube’s use of video clips,” USA Today, Feb. 13, 2007.
Green, Heather , “Whose video is it, anyway? YouTube’s runaway success has opened a Pandora’s box of copyright issues,” BusinessWeek, Aug. 7, 2006, p. 38.
Hane, Paula J. , “Online video still dominates the news,” Information Today, January 2007, p. 7.
Hesseldahl, Arik , “A Few more ‘Thoughts on Music,’” BusinessWeek, Feb. 8, 2007.
Holahan, Catherine , “Cracking down on video piracy: MySpace is stepping up efforts to block uploads of unauthorized content with new screening technology. Google, are you listening?” BusinessWeek Online, Feb. 13, 2007.
Holahan, Catherine , “Google and YouTube: A Catch-22 — Corporations have complained about YouTube’s copyright infringements, but if Google complies with their wishes, it risks angering users,” BusinessWeek Online, Jan. 29, 2007.
Holahan, Catherine , “Viacom’s high-stakes duel with Google: Many see Viacom’s public demand that YouTube remove copyrighted content as a negotiating gambit. But it does raise the ante on video sharing,” BusinessWeek Online, Feb. 5, 2007.
Holahan, Catherine , “YouTube’s new deep pockets: The online video star has found a rich parent, but can it ensure that it won’t leave Google vulnerable to copyright lawsuits?” BusinessWeek Online, Oct. 10, 2006.
Holson, Laura M. , “Hollywood asks YouTube: Friend or foe?” The New York Times, Jan. 15, 2007.
Jesdanun, Anick , “MySpace launches pilot to filter copyright video clips, using system from Audible Magic,” Associated Press Newswires, Feb. 12, 2007.
Karnitschnig, Matthew , “Viacom deal releases clips online,” The Wall Street Journal, Feb. 20, 2007, p. A3.
Karnitschnig, Matthew , “Viacom orders removal of videos from YouTube,” The Wall Street Journal, Feb. 3, 2007, p. A3.
Karnitschnig, Matthew and Kevin J. Delaney , “Media titans pressure YouTube over copyrights,” The Wall Street Journal, Oct. 14, 2006.
Kharif, Olga , “Sour musical notes on YouTube, MySpace: The Web giants and other sites are under fire from the music industry over unauthorized video copies. The battle could end up in court,” BusinessWeek Online, Sept. 18, 2006.
Lee, Ellen , “YouTube’s video boom ‘a social phenomenon,’” San Francisco Chronicle, Oct. 10, 2006, p. A1.
Leeds, Jeff , “Universal Music sues MySpace for copyright infringement,” The New York Times, Nov. 18, 2006, p. 3.
Liedtke, Michael , “Google holds back stock in YouTube deal,” Associated Press Newswires, Nov. 14, 2006.
Lomax, Alyce , “DRM may die? Yahoo!,” The Motley Fool, Feb. 15, 2007, http://www.fool.com/investing/general/2007/02/15/drm-may-die-yahoo.aspx.
Maney, Kevin , “Media companies would do well to heed lessons in fidelity, convenience,” USA Today, Nov. 1, 2006, p. B3.
Markoff, John , “Jobs calls for end to music copy protection,” The New York Times, Feb. 7, 2007.
McBride, Sarah , “Hollywood weighs copyright protections: Forces in music industry close in on filmmakers amid online piracy,” The Wall Street Journal, Feb. 16, 2007, p. B3.
McCullagh, Declan , “YouTube may add to Google’s copyright worries: Popular video-sharing site already faces legal heat. Will its acquisition make Google a high-profile lawsuit target?” CNET News.com, Oct. 9, 2006.
Morris, Chris and Carl DiOrio , “Universal Music sues MySpace over copyrights,” Hollywood Reporter, Nov. 18, 2006.
Mugrabi, Sunshine K. , “Could YouTube be Napsterized?” Red Herring, Feb. 6, 2007 [http://www.redherring.com/Article.aspx?a=21152&hed=Could+YouTube+Be+Napsterized%3F].
Mugrabi, Sunshine K. , “Fixing YouTube: Copyright filtering a boon for small tech companies,” Red Herring, Feb. 13, 2007 [http://www.redherring.com/Article.aspx?a=21288&hed=Fixing+YouTube§or=Industries&subsector=EntertainmentAndMedia#].
Musgrove, Mike , “Jobs calls for open music sales: Apple’s chief says anti-piracy software is failure,” Washington Post, Feb. 7, 2007, p. D3.
Musgrove, Mike , “Jobs’s music proposal rebuffed: Piracy software not the problem, industry executive says,” Washington Post, Feb. 9, 2007, p. D2.
Pegoraro, Rob , “Time to face the music on file sharing,” Washington Post, Feb. 15, 2007, p. D1.
Peters, Jeremy W ., “Viacom sues Google over YouTube video clips,” The New York Times, March 14, 2007.
Sandoval, Greg , “A New copyright battlefield: Veoh Networks,” CNET News.com, Feb. 21, 2007.
Sandoval, Greg , “YouTube dances the copyright tango,” CNET News.com, July 24, 2006.
Smith, Ethan , “MySpace deploys system to guard copyrighted works,” The Wall Street Journal, Oct. 31, 2006, p. B2.
Smith, Ethan and Julia Angwin , “Universal Music sues MySpace claiming copyright infringement,” The Wall Street Journal, Nov. 18, 2006, p. A3.
Steel, Emily , “YouTube executive walks a tightrope: Marketing officer seeks to introduce paid ads without losing users,” The Wall Street Journal, Jan. 17, 2007, p. B3.
Stone, Brad , “Can YouTube be a real business?” Newsweek, Oct. 9, 2006 [http://www.msnbc.msn.com/id/15079910/site/newsweek].
Stone, Brad and Miguel Helft , “New weapon in Web war over piracy,” The New York Times, Feb. 19, 2007, p. C1.
Stone, Brad , “Social networking’s next phase,” The New York Times, March 3, 2007.
Story, Louise , “Fox Interactive acquires technology ad company,” The New York Times, Feb. 23, 2007, p. C7.
Urbanowicz, Nicole , “Fox subpoenas YouTube over pirated TV shows,” The Wall Street Journal, Jan. 26, 2007, P. B4.
Veiga, Alex , “Music labels target college piracy suspects with settlement offer,” Associated Press Newswires, Feb. 28, 2007.
Veiga, Alex , “Universal Music chief blasts YouTube, MySpace over copyrights,” Associated Press Newswires, Sept. 14, 2006.
Veiga, Alex , “Universal Music sues MySpace.com for copyright infringement,” Associated Press Newswires, Nov. 17, 2006.
“Viacom files federal copyright infringement complaint against YouTube and Google: Suit seeks court ruling to require YouTube and Google to comply with copyright laws and pay $1 billion in damages,” March 13, 2007 [http://www.viacom.com/view_release.jhtml?inID=10000040&inReleaseID=227614].
Volpe, Anthony S. , “YouTube, viral videos and copyright infringement on the Internet,” Legal Intelligencer, Sept. 6, 2006, p. 5.
Woolley, Scott , “Video fixation: As the Internet alters what we watch and how, YouTube surfs the next wave,” Forbes.com, Oct. 16, 2006.