Reuter’s Alison Frankel has this interesting piece about the long standing debate over copyright duties under the Digital Millennium Copyright Act (DMCA) (1998)’s safe harbor provisions. A key issue in Viacom v. YouTube (currently pending in the New York’s 2nd Circuit Court of Appeals) is what copyright duties a service provider company (like YouTube) owes under the DMCA’s safe harbor provisions. Does YouTube have to evaluate every video upload and take down videos that appear to infringe someone’s copyright? Viacom says “yes,” but YouTube says “no, we just have to remove videos that infringe someone’s copyright after receiving the usual cease & desist (C&D) letter.” Who will win? Time will tell, but this 2nd Circuit appeal will be a major Internet copyright law precedent, shaping the scope of the DMCA’s service provider safe harbor provisions, and potentially changing how each of us use the Internet and interact with the landscape of digital copyright law.
If Viacom is right that YouTube should be policing each video upload to check for copyright infringement, there are several implications. First, YouTube (and its parent company, Google) would need a massive database of copyrighted videos, photos, and/or music. Unlike the Copyright Office’s database, YouTube’s database would need to be easily searchable, including for elements of remixed content. Second, YouTube would have to perform a potentially sophisticated and lengthy copyright law analysis of each upload to determine whether it was infringing – maybe run it through a long legal checklist and wait a couple weeks for a response from their legal department, maybe submit a sample of the proposed upload to the copyright holder (assuming the copyright holder could be identified and located), determine how an appeal of its judgment was to be handled, and determine how its copyright infringement filter was to interact with the copyright law’s existing framework. So a Viacom victory might well have a chilling effect on creation and uploading of new content and mixes of old IP to YouTube. But a Viacom victory might well be a propos given the Supreme Court’s Betamax opinion (1984) and other court decisions. Profs. Ronald Cass, Raymond Nimmer, and Stewart Brotman filed this brief supporting Viacom. 31 other law professors filed this brief supporting YouTube’s favor.
If YouTube is right, then Congress carved out a huge exception to help service providers in the DMCA’s safe harbor provisions. Run an Internet service, but don’t fancy yourself a copyright law expert, or don’t care to evaluate every bit of content uploaded for potential copyright infringement? No worries, argues YouTube, the DMCA’s safe harbor is your “I’m not responsible for the content this bloke has posted” card, to be played whenever a content provider/copyright holder gets tired of sending batches of C&D letters to your users. Both sides have good points, so we’ll see how the 2nd Circuit decides this Internet copyright saga.
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