De-Groksterizing YouTube In Ten Minutes Or Less

De-Groksterizing YouTube In Ten Minutes Or Less

Summary: Mostly anonymous intellectual property lawyer Ron from DC has an entertaining and informative clip on YouTube arguing that Tur v. YouTube should have a different outcome than MGM v.

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Mostly anonymous intellectual property lawyer Ron from DC has an entertaining and informative clip on YouTube arguing that Tur v. YouTube should have a different outcome than MGM v. Grokster:

From the video:  "I do not believe Mr. Tur will be able to prove that YouTube has made money directly attributable to his video."  As Fred von Lohmann has written, this is a key factor in YouTube's ability to invoke the DMCA's online service provider safe harbor provisions, and as Fred further explains, the problem is "a bit [more] sticky" than lawyer Ron lets  on.  A fascinating upshot of Ron's video is the creation of the "Friend of the Court Video" tag on YouTube:  an opportunity for YouTube users to tag their noninfringing works as such in support of the argument that substantial noninfringing uses preclude YouTube's liability for contributory infringement.

Fred's article concludes:  "YouTube's investors poured another $8 million into the company in April, and you can be sure that money will go toward buying top-drawer copyright advice."  Among the first points YouTube's  team will have to address is whether YouTube may in fact invoke the DMCA as a shield.  Plaintiff Tur's lawyers have indicated they intend to argue otherwise:  "There are service providers — utility companies, so to speak — and there are content providers. And I would be very surprised at how [YouTube] could possibly qualify as an ISP within the meaning of (the act)."

Mack Reed has a related editorial in USC's Online Journalism Review, Publishers vs. YouTube: Does either side win?, where he rightly points out that the more technology normalizes the "unauthorized propagation of information," the more the law is called upon to react and adjust.

Topic: Social Enterprise

Denise Howell

About Denise Howell

Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law.

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4 comments
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  • correction on Napster

    The original Napster never store any copyrighted content, it only centralized the pointers to that copyrighted content. Newer P2P technology distribute the pointers as well.
    georgeou
    • re correction on Napster

      That's right, good catch.
      Denise Howell
    • All content is copyrighted

      Unless it has fallen into the public domain. Under Berene the copyright exists the moment you put your Idea into a tangible form (Write it down) assuming that such is copyrightable.

      The problem isn't distributing copyrighted content. The problem is distributing copyrighted content without permision.

      Almost everything on YouTube is copyrighted by someone- Even the videos of the Frat boys drinking or the Famous CatWheel. The difference is that the copyright holders placed those videos on YouTube to be distributed.

      The DMCA safe-harbor provision may sheild YouTube. WebSpce providers, under the DMCA, are not liable for copyright infringement if they follow the notification/take-down procedures laid out in the DMCA's safe harbor section.
      Edward Meyers
  • Consumers want to be able use content freely

    I believe it is important and fundamental to craft laws and business models around the realities of human behavior. People cherish above all, freedom in how they are able to do stuff and use stuff; and people like free stuff, but are willing to pay for stuff if they judge that the stuff is worthwhile, and if they can afford to do so. Therefore it is the companies that distribute content with the above reality in mind, which will be the most successful. What I?m waiting for, is for a flood of independent content providers is to come on the scene, and for many of them to recognize this, and offer content in a manner that is highly reflective of consumers? wishes.

    Content providers need to provide their content so that it can be consumed and manipulated by consumers easily and flexibly, while ensuring that they obtain reasonable returns for their efforts. (This of course means that DRM does not enter the picture.) I believe this can be done with freely available versions of the products that have embedded ads, along with premium versions without ads, supported by superior services.

    I believe a lot of companies are wasting money and time supporting DRM, because DRM is like prohibition. The more people try to foist DRM on consumers and support it with ?content lock down? legislation, the more people will become inclined to break the law to protect their perceived freedoms.
    P. Douglas