:Information Law and Policy Spring 10

I know we are pretty far from DMCA safe harbors syllabus-wise, but I just went to watch a Colbert Report clip on YouTube and saw a message that I hadn’t noticed before on some copyrighted content. Instead of (roughly), “This video has been removed due to copyright infringement,” the message on the Colbert vid page read, “This video contains content from Viacom, who has decided to block it.”

For those who don’t know the details, Viacom sued YouTube in 2007, citing seven counts of infringing activity in the original claim: direct infringement of three exclusive rights (reproduction, public display, and public performance; inducement of copyright infringement; contributory infringement (burden on the plaintiff to prove that the defendant had knowledge of infringement); and vicarious copyright infringement (plaintiff must prove that the defendant benefits financially from infringement and that defendant was in a position to supervise and control it but chose not to). (Case docs available here.)

YouTube is using the affirmative safe harbor defense, a provision of the DMCA that protects ISPs from liability if they satisfy outlined requirements, including a procedure for handling takedown notices in the event infringing content is found, a repeat infringer policy, and registration of a Copyright Agent. Because YouTube hosts user content, they claimed protection under 17 U.S.C. § 512(c), “Information Residing on Systems or Networks At Direction of Users.” But Viacom believes that YouTube has not done enough to ensure that Viacom content stays off the site, and wants $1 billion in damages. They contend that YouTube’s business is based on “massive infringement” and the DMCA doesn’t protect them. Several legal scholars and experts disagree. (A big privacy controversy also came up in this case in 2008 when a judge ordered YouTube to turn over user records to Viacom.)

Last year, a judge ruled in favor of online video site Veoh when it used the safe harbor defense against a copyright infringement suit from  Universal Music Group. Veoh won a similar suit a year prior against adult content creator Io Group. Both of these cases are great precedents for Google.

In 2008, Google launched Content ID to help automate the copyright filtering by allowing copyright owners to block uploads that match IDs of copyrighted material (more here). Even though they rolled out the technology quite some time ago, I’ve never noticed this message before on Viacom stuff—and I’ve looked at plenty. I Googled the phrase (irony?) and a lot of the search results show fairly recent time/date stamps. This leads me to believe that the Content ID database is growing, thus working better, which should only help Google’s defense, as they’ve gone above and beyond what’s required by the DMCA and developed a technology to further supervise and police users’ infringing activity.

But I wonder if it’s possible that this kind of identification technology might complicate what “right and ability to control” means in the safe harbor clause in cases that come after the YouTube resolution—whenever that may be, and assuming there will be more. Could a company suing for infringement say that an online hosting site has not fully exercised the “right and ability to control” because they haven’t adopted a technological gatekeeper like Content ID?

Update: Pitchfork announced today that a bunch of MP3 blgos on Blogger have been deleted by Google. Connection to the YouTube case?

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