Google 'safe harbor': 'Nice' way to do business?

“Does YouTube Really Have Legal Problems?”

Tim Wu, professor at Columbia Law School, takes exception with “part-time copyright theorist Mark Cuban”:

When Google bought YouTube, the conventional wisdom—expressed in op-eds, newspaper articles, and scary editorial cartoons—was that they'd also bought themselves a whole heap of copyright trouble. The New York Times used the phrase "litigation-laden landmine." Part-time copyright theorist Mark Cuban warned that YouTube would face the same copyright fate as Napster. There's only one problem with these theories: the copyright law itself. Under the copyright code, YouTube is in much better legal shape than anyone seems to want to accept. The site enjoys a strong legal 'safe harbor.' 

Google, the soon to be owner of YouTube, certainly believes the “site enjoys a strong legal ‘safe harbor,’” whether “people like it or not.”

Google CEO Eric Schmidt was asked at the company’s recent Q3 conference about YouTube and the Digital Millenium Copyright Act (DMCA). 

ANALYST: a couple of questions on video and YouTube. First, how heavily are you relying on maybe a liberal interpretation of the Digital Millennium Copyright Act? I guess, how are you going to be responding to some of the copyright commentary out there?

 

SCHMIDT: we are definitely not relying on a liberal or a conservative interpretation of the DMCA. We are relying on the Digital Millennium Copyright Act as it is being imposed by law and there are not a lot of shades of gray in how it works. There's a set of procedures for take down. If you operate under this, companies have a Safe Harbor. We do our very, very best to implement it exactly as prescribed, as does everyone else in the industry. So whether people like it or not, it is the law of the land and we absolutely operate by it.

The DMCA “law of the land,” however, is not as black and white as Schmidt conveys. 

Wu acknowledges such:

Of course, as with any law, YouTube's legal status might not be 100-percent airtight. The law suggests (in §512(c)(1)(A)(ii)) that YouTube might be liable if, in the absence of notice, it is 'aware of facts or circumstances from which infringing activity is apparent.' Also, YouTube provides a search, and maybe it could be liable for that.

Wu is confident in YouTube’s DMCA prospects, save for one troublesome prospect:

There might be enough to make trouble in the hands of a judge who really hates ‘that whole Web 2.0 thing.’ 

“That whole Web 2.0 thing?”

As in a Google YouTube $148 billion market cap business model fueled by selling ads against content it has not compensated rights holders for and that it has no explicit legal rights to use?

As Google’s market cap continues to balloon, so does Schmidt’s confidence in his approximately 100-person strong in-house legal team, reinforced by unlimited recourse to legal counsel around the world.

Schmidt is relying on his legal war chest to do battle in courts with the aim of establishing a body of legal interpretation favoring his “Web 2.0 thing,” a free content for Google business model.

At the Search Engine Strategies Conference in August, Schmidt assured: 

no one at Google is suggesting that we are not subject to copyright law. 

Schmidt clarified, however, that Google lawyers define the copyright law the company is subject to: 

In the United States there is a fairly well-established doctrine of fair use. And depending on which graduate school or legal school the lawyer went to, they disagree on precise details. The ones who went to this law school agree on one thing and the ones that went to this law school went to another. And I've learned that the law is not as crisply defined in this area as you might want. So in our case, we've analyzed this pretty carefully. We believe that the library work we're doing, given that we're not, in fact, reproducing the book but rather simply a snippet and then we have a pointer to the book, is absolutely permitted by fair use. Reasonable people can disagree with that, but that is our view and we spent a lot of time on it. And I don't think we're going to change our tune on that. 

Wu acknowledges a lack of “crisp definition” and celebrates the ambiguity: 

much of the copyrighted material on YouTube is in a legal category that is new to our age. It's not 'fair use,' the famous right to use works despite technical infringement, for reasons of public policy. Instead, it's in the growing category of 'tolerated use'—use that is technically illegal, but tolerated by the owner because he wants the publicity. If that sounds as weird as 'don't ask, don't tell,' you're getting the idea. The industry is deeply conflicted about mild forms of piracy… under the emerging regime, if you do cause infringement, you have to be nice about it and make determined efforts to stop it. 

NICE? Admirable quality, but not a legal defense. 

DMCA does not provide Google YouTube a “nice,” guaranteed legal cover, as Advocate V.K. Unni underscores in "Internet Service Provider's Liability for Copyright Infringement," 2001, The Richmond Journal of Law and Technology:

(DMCA) does not establish an exemption to copyright infringement liability. At best, the law is a 'limitation' on liability taking the form of a statutory change in the remedies available to a plaintiff, rather than a legal exemption to copyright infringement liability.

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