YouTube: Are YouTubers at risk? EFF says so

UPDATE: Over the past several weeks, I have put forth and dissected advocacy underway by John Palfrey and Jim Moore, Berkman Center for Internet & Society at Harvard Law School, to rally support for a prospective class action lawsuit against Viacom.

I have asked "Who is the "villain" that is responsible for what Moore deems to be “tens of thousands” of “legitimate” YouTube video uploaders being "threatened" by DMCA notices?" YouTube corporate owner Google is apparently deemed innocent by Moore, even though it is Google that is operating its business based on DMCA modus operandi.

The Electronic Frontier Foundation is also encouraging YouTubers to "stand up to the giant conglomerate (Viacom, not Google), CNET reports. Palfrey is cited as well.

FEBRUARY 8, 2007: The Berkman Center for Internet & Society at Harvard Law School strives to “pioneer” the development of cyberspace. The Center’s pioneering efforts include “advocacy”:

We engage in targeted efforts to effect law reform where we deem such activism to be necessary, both domestically and internationally, to protect and foster openness on the Internet.

In “YouTube: Is Viacom hurting innocent YouTubers?” I present the advocacy currently underway by a prior Senior Fellow at the Center, Jim Moore, to enlist “local (Harvard) talent” in a prospective class action law suit to “go after Viacom.”

John Palfrey, Executive Director, is engaging in targeted efforts championing the “rights” of YouTubers he believes may have been harmed by Viacom’s championing of its copyright ownership rights, such as Moore.

In a series of posts at his blog since last Friday, Palfrey has sought to answer what he considers a pivotal question: How many Jim Moores are out there?

I wonder how many home videos have to have been caught up — and taken down — in this sweep before one could say that it was “knowing” on the part of Viacom? Combine that with the mash-ups that may include some of Viacom’s material, but where a fair use analysis will vindicate the alleged infringer. Could a human being have looked at each of these 100,000 videos? Might a court say: “You ought to have known that if you crank these notices out automatically and not checking each one, you must know there’s some non-infringing material in there”?

To Palfrey’s point: Could a human being have looked at each of these 100,000 videos? Might a court say to Google’s YouTube: “You ought to have known that if you allow automatic video uploads and not checking each one, you must know there’s some infringing material in there”?

Palfrey decries: “It’s one company (Viacom) writing to another company (Google/YouTube) and poof — the video is gone, off the web. No judge, no jury.”

“Poof, the video is gone, off the Web?” Can YouTubers really be considered aggrieved parties?

YouTubers do not pay YouTube for the video hosting it makes available to them. Have YouTubers nevertheless entered into a service contract with YouTube entitling them to video hosting performance guarantees?

YouTube Terms of Service:

YOU AGREE THAT YOUR USE OF THE YOUTUBE WEBSITE SHALL BE AT YOUR SOLE RISK. YOUTUBE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE YOUTUBE WEBSITE.

The YouTube Terms of Service, along with common sense, suggest that YouTube makes its infrastructure available to individuals on an “as is” basis with no performance guarantees whatsoever.

Palfrey nevertheless is contemplating the recourse available to non-paying YouTubers that Viacom is deemed to perhaps be responsible for “defaming”:

One does wonder about the statement: “This video has been removed at the request of copyright owner Viacom International Inc. because its content was used without permission”…I suppose you run up against a damages question, but it certainly seems like a user might have a valid concern about defamation.

Google’s YouTube has “taken down” videos it hosts, posted public notices of same and sent notification communications to YouTubers.

Palfrey nevertheless considers Viacom to be the culprit, referencing a video taken down as having “prompted the nastygram from Viacom.” The supposed “nastygram” was authored and sent by YouTube, however, not Viacom.

Moore posited last Friday that “tens of thousands” of “legitimate” videos were “pulled down” due to an “onerous and notorious DMCA.”

Palfrey, however, appears to have accepted Viacom’s assessment of “an error rate of .05%.” He continues to underscore though:

If Viacom is right 99,940 times out of 100,000. What rights do those 60 people have?

One right they can not arguably have is for a refund of video hosting fees!

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