June 25, 2018

YouTube and Copyright

YouTube has been much in the news lately. Around the time it was bought by Google for $1.65 billion, YouTube signed copyright licensing deals with CBS television and two record companies (UMG and Sony BMG). Meanwhile, its smaller rivals Bolt and Grouper were sued by the record industry for infringement.

The copyright deals are interesting. The first question to ask is whether YouTube needed the deals legally – whether it was breaking the law before. There’s no doubt that some of the videos that users upload to YouTube include infringing video and audio content. You might think this makes YouTube an infringer. But the law exempts service providers from liability for material stored on a server at users’ request, as long as certain conditions are met, including a requirement that the service provider take down material promptly on being notified that specific content appears to be infringing. (See section 512(c) of the DMCA.) Whether a site like YouTube qualifies for this exemption will be one of the main issues in the lawsuits against Bolt and Grouper.

It’s easy to see why CBS and the record companies want a deal with YouTube – they get money and greater control over where their content shows up on YouTube. Reading between the lines in the articles, it looks like YouTube will give them fairly direct means of taking down videos that they think infringe their copyrights.

Why would YouTube make a deal? Perhaps they’re worried about the possibility of lawsuits. YouTube hasn’t been sued yet, but the Bolt and Grouper cases might create precedents that put YouTube in jeopardy. YouTube might prefer to make deals now rather than take that risk.

But even if it faces no legal risk, YouTube might want to make these deals anyway. If users feel safer in posting CBS, UMG and Sony BMG content on the site, they’ll post more of that content, and they’ll face fewer frustrating takedowns. The deals might give YouTube users more confidence in using the site, which can only help YouTube.

Finally, we can’t ignore the influence of politics. In recent years, entertainment companies have run to Congress whenever they thought a new product led to more infringement. Congress has typically responded by pressuring the product’s maker to cut licensing deals with the entertainment companies. YouTube is getting in front of this process by making deals now. Again, whether YouTube is actually breaking the law makes little difference, because the dynamic of entertainment company complaints followed by threats to regulate relies not on existing laws but on threats to create new, more restrictive law.

Whether YouTube qualifies for the legal exemption is an interesting question for lawyers to debate. But in today’s copyright policy environment, whether a company is breaking the law is only one piece of the equation.

Comments

  1. “But in today’s copyright policy environment, whether a company is breaking the law is only one piece of the equation.”

    So true and a sad state of affairs. The law has very little to do with who win in a copyright dispute. Usually the winner is the one with the biggest pocketbook.

  2. Sorry about the typo. Meant to say “wins” rather than “win”

  3. Winston Smith says:

    I’m opposed to a company growing as large as Google, especially since they can’t be trusted to live up to their motto – “don’t be evil”. If there were another site like youtube, I would use it instead.

  4. I don’t know if they are breaking copyright or not. I am not a caveman lawyer.

    But they do only offer up 10 minute videos. Granted some break vids up into several blocks of 10 minutes inorder to post a whole 60 minute segment.

    Still, it will be a sad day IMO if the plug gets pulled on YouTube. It has offered a certain degree of freedom. It’s been refreshing to be able to see on demand clips from various news broadcasts and shows that I missed.

    Without a YouTube like service, I doubt many of the clips of politicians making serious faux paux on camera would get played again.

    I would argue that YouTube can HELP rating for shows that make a buzz on YouTube. I think YouTube is helping the likes of Olbermann and others by having their vids uploaded.

    If the MSM and others try to wrestle away their content from YouTube they could actually hurt themselves by not getting exposure to potentially new viewers.

    YouTube is a form of advertising and propaganda. It can be used both for and against.

  5. I am concerned that the deals with lead to bias, surely there must be some limit to the amount of material that the site can offer – think 5 years from now – the material that the labels want to promote will be placed and positioned at the expense of neutrality and the independent stuff shafted – I think YoutTude is an excellent site and I have used it a number of times but these deals make me think that the days of independence and impartiality are gone.

  6. Sal said: “these deals make me think that the days of independence and impartiality are gone”.

    This is actually a seemingly inevitable consequence of becoming popular and thus, big. And thus, a big target (for litigation or regulation or whatever). Also, big means less concerned about the individual user’s experience, and more concerned about everything from liability to simply squeezing the user base for revenue in various ways that they won’t necessarily like.

  7. fhjdsjg Sal said: “these deals make me think that the days of independence and impartiality are gone”.

    This is actually a seemingly inevitable consequence of becoming popular and thus, big. And thus, a big target (for litigation or regulation or whatever). Also, big means less concerned about the individual user’s experience, and more concerned about everything from liability to simply squeezing the user base for revenue in various ways that they won’t necessarily like.

  8. OK, what’s the deal here? I went to post a comment, and it said it failed due to a “server error”. I didn’t make any error. (Computers seem to be very bad at taking responsibility; anything that goes wrong is ipso facto the user’s fault, from their perspective.)

    Naturally, I went to post it again. This time it complained that it was duplicated, even though it had claimed the previous try had failed.

    Of course, when I alter it and post it again, not only does it succeed finally, but there is actually another copy — one of the two it claimed failed.

    And it’s not like I could have just trusted the “duplicate” message. At another blog recently, a post failed with a spurious error, and a retry failed with the same sort of message. A modified retry succeeded, and only the modified retry appeared subsequently. If I’d believed the “duplicate” message then, my comment would have been destroyed unrecoverably. Same of course if I hit “back” and then “refresh” to reload the page with the comments; if it succeeded fine, but if it’s not there, and the submission form is now blank again … data loss.

    Submission forms on Web sites don’t have “save as” or other data preservation options (though you can jump through some hoops with copy-paste and the like). They should really therefore be maximally reliable, and a) not appear if nothing that user enters will be accepted anyway and b) always succeed otherwise, barring an actual problem with a field’s value. A field the user can change. (I’ve seen more than my fair share (which would be zero of course) of form submissions failing due to an error in a hidden field!) Also, c) on error, the error page should always include a copy of the form filled in with the user’s data, maybe with the (first) problem field marked in some way; and d) anything along the lines of “duplicate detected” must never, ever, ever, ever have false negatives. Ever. (Unfortunately, until they never have false negatives at any site, experienced users will mistrust them at every site…)

  9. Er…false positives. 😛

  10. Slate just posted a related article, Does YouTube Really Have Legal Problems?, saying that we can thank the Bell companies for section 512 of the DMCA which allows YouTude to continue to exist. In the pre-DMCA days, it, like Napster, might have been shut down.

  11. Neo,

    A server error is an error on the web server. In other words, the computer was accepting blame for the problem. It wasn’t blaming you.

    John