YouTube and copyright, etiquette and law

YouTube and copyright, etiquette and law

Summary: Columbia law professor Tim Wu has a brilliant essay at Slate entitled Does YouTube Really Have Legal Problems?  How the Bell Lobby helped midwife YouTube.


Columbia law professor Tim Wu has a brilliant essay at Slate entitled Does YouTube Really Have Legal Problems?  How the Bell Lobby helped midwife YouTube.  I say "brilliant" because Professor Wu goes beyond the hype around YouTube as one of the 'Net's current infringement bogeymen, and emphasizes the fascinating role reversals and strange-bedfellow context behind GooTube's invocation of Section 512 of the DMCA as its shield in the copyright wars.  First, Professor Wu offers some historical perspective concerning the birth of Section 512, the DMCA's safe harbor against liability for third party infringement:

This summer, Sen. Ted Stevens, R-Alaska, earned the bemused contempt of geeks everywhere when he described the Internet as "a series of tubes." But back in 1995, Hollywood was insisting that the Internet be characterized as "a bookstore." And a bookstore, unlike a series of tubes, breaks the law if it "carries" pirated novels. So too, Hollywood urged, Internet companies should be liable if they carry any illegal materials, whether the companies know it or not.

Had that view prevailed, there would probably be no YouTube today, and also no free blog sites, and maybe not even Google or Web 2.0. What venture capitalist would invest in a company already on the hook for everything its users might do? But, in one of the lesser-known turning points in Internet history, Hollywood never got its law. Its unstoppable lobbyists ran into an unmovable object: the Bell companies, who own those "tubes" over which the Internet runs. In the mid-1990s, fearing a future of liability, the Bells ordered their lobbyists to fight Hollywood's reforms, leading to one of the greatest political struggles in copyright history. (This paper provides a history of this and other struggles.)

Hollywood employs legendary lobbyists, like Jack Valenti, but when they ran into the Bells, it was like Frazier meeting Foreman.  ...

He goes on to aptly characterize the central role this provision has come to play in the legal and economic life of the Internet:  "[Y]ou might call §512 the Magna Carta for Web 2.0."

Finally, Professor Wu discusses how the choices Section 512 offers to copyright holders gives rise to a new phenomenon, "tolerated use:"

What's really interesting is that the content industry actually likes §512 more than anyone will admit. The notice-and-takedown system gives content owners the twin advantages of exposure and control. When stuff is on YouTube, the owners have an option. They can leave it posted there, if they want people to see it, and build buzz. But they can also snap their fingers and bring it all down. And for someone who is juggling her desire for publicity against her need for control, that's ultimately a nice arrangement.

Stated otherwise, 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—trapped somewhere between its pathological hatred of "pirates" and its lust for the buzz piracy can build.  ...

The upshot is, as YouTube goes mainstream, copyright's etiquette rules are becoming clearer. Yes, these sites can make it easier to infringe copyright. But so long as that's not the principal aim of your company, you have more breathing room today than you once did.

In the wake of the U.S. Supreme Court's ruling in MGM v. Grokster, it remains dicey to put much stock in such "breathing room" and "tolerance."  Consistent with a past observation of Fred von Lohmann's, as norms develop around the propriety of certain activities and whether they are on balance societally salutary or detrimental, it is less than ideal to leave the determination of whether those activities are lawful and/or permissible to a decidedly interested party.  Instead, the "tolerated use" trend Professor Wu has flagged in connection with Section 512 is precisely the sort of thing that can (and I think eventually will) prompt courts and other lawmakers to convert "etiquette" into law.

For related discussion, see:

Topic: Legal

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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  • tolerated use predates the WWW

    Fanart, Eg; a person draws their own version of say Bugs Bunny (An unlicensed derivative), has existed for years and technically infringes copyright doubly so when displayed publicly in County/Town fairs/Art Shows (Go to any small county fair or local HS art show and you will find Fanart).

    This has been going on for years.

    There is also a very interesting paper on [url=]FanSubing[/url], a previously tolerated use, here
    Edward Meyers
  • Isn't he paraphrasing Grokster...

    ... when he writes:
    "But so long as that's [infringing copyright] not the principal aim of your company, you have more breathing room today than you once did."

    Grokster said a company cannot be for profit, announce that it intends to make money by copyright violations, and encourage people to violate copyright.

    (Bothers me that the Court used as evidence a commercial that was never issued. The fact the commercial was not issued may be an indication the company did not endorse what the commercial said.)

    So, even accepting that a Court decision is imperfectly understood until the next decision, why shouldn't he believe the Courts have granted potential infringers some room?
    Anton Philidor
    • Grokster

      He is. But I think it's wrong to interpret that decision as granting much breathing room. You hit the nail on the head when you say it's "imperfectly understood," not just because it hasn't had the chance to develop in subsequent case law but because it's broadly enough worded that it's difficult/foolish to limit the decision's impact to its particular facts. (More <a href="">here</a>.) So, while I think Professor Wu's statement may be accurate, that's more due to someone's decision to tolerate the behavior than to certainty under Grokster that particular conduct will be deemed lawful.
      Denise Howell
      • Let the Wookie win.

        One (so far) unquestioned aspect of Grokster is that a company not expecting to make a profit is safe. An organization which issues software, warns against infringement, and has no other involvement in the activities of users seems to have escaped the Grokster exception.

        Admittedly, for profit companies do have to engage in a PR exercize because the Grokster decision is ultimately about the impression a company creates.

        It's not a crime if the defendant hasn't said it is... And I thought anti-trust's invention of a market after the charge and intent's mind reading and conspiracy's judgment of seriousness were bad.
        Anton Philidor
    • Ignore the Grokster Wookiee for a second

      If we ignore the Grokster [url=]Wookiee[/url] that is standing in the corner and just focus on section 512 for a second...

      [i](c) Information Residing on Systems or Networks at Direction of Users. -

      (1) In general. - A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider -

      (A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

      (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

      (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

      [b](B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and[/b]

      (C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.[/i]

      So there is actually even less breathing room than you think if the service provider receives a financial benefit directly related to the infringing activity.

      Now if a random add is on the page, this is the model for almost all free web services, which hosts the materials then are they receiving a financial benefit [b]directly[/b] related to the activity. That will be the question to answer in all the video sharing cases (YouTube is not the only one being sued right now).
      Edward Meyers
      • Ignoring the Wookie

        Denise Howell