Google Buys YouTube. Now What? - In the Shadow of Copyright
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Let’s look at some of the most viewed videos on YouTube. They include clips of Ted Turner, an episode of South Park, a clip from a political debate between two Congressmen, and other material that is under copyright – and, one assumes, not copyrighted by the people who uploaded them to YouTube. This is not unusual; for example, when the “Lazy Sunday” video from Saturday Night Live was uploaded to YouTube, NBC demanded that it be pulled, which it was. YouTube hasn’t attracted more lawsuits in part because of its size and finances; a copyright holder suing the company would be more likely to shut it down than receive a significant monetary settlement. With Google’s deep pockets in the picture, that might change.
For its part, YouTube believes it is protected by Section 512 of the Digital Millennium Copyright of 1998. That section states that hosting companies are not legally liable for copyright violations so long as they respond quickly to formal notices from copyright owners and remove the offending material, something which YouTube has always done. But it is questionable whether YouTube meets all four conditions to qualify for this “safe harbor.” They include the following:
The copyrighted material must “reside” on the hosting service.
The material must be stored “at the direction of a user.”
The hosting service must not be “aware of facts or circumstances from which infringing activity is apparent.”
The hosting company must not “receive a financial benefit directly attributable to the infringing activity.”
If we consider that Google may shortly start running ads on YouTube (and that YouTube has already been running ads on its site), the online video hosting company is in danger of not meeting the fourth condition required to earn protection under Section 512’s safe harbor. By the way, copyright is not like a trademark; if you don’t defend a trademark, you can lose your rights to it, but if you’re a movie producer (for example) you can allow a clip from one of your movies to play on YouTube for a while and then demand that it be taken down.
Now there are a number of ways one can approach the copyright issue. If we look at the example of the music industry, they didn’t even want fans to be able to record their products for personal use. Just look at how they initially reacted to MP3s, and how the RIAA still reacts to anyone they suspect of using peer-to-peer networks to download songs. The movie industry is just as strict; does anyone remember the lawsuits surrounding VCRs? Then again, there is the example of the gaming industry, which encourages users to create and publish mods for popular games. So where is the video industry going to line up? That is the big question, and that is the issue Google must be prepared to deal with as it enjoys its new acquisition.
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