Tuesday, July 18, 2006

Chronicle of a suit foretold

It was inevitable. The popular online video repository YouTube has been sued for copyright infringement by Robert Tur, owner of Los Angeles News Service. Tur seems to be an experienced copyright litigator, and he is asking for $150,000 USD for each infringed work, and also is asking for an injunction against YouTube not to allow any of his works to be posted on the Web site.

Does he have a case? I think not, as YouTube's service is completely unlike P2P sharing networks. Most of the content hosted by YouTube is amateur video loaded by users, sometimes remashed from other sources, such as the surprisingly funny Juggernaught video (trivia for X-Men fans, the tag for this video makes an appearance in X-Men 3!). YouTube also defeats easily the Grokster inducement test, as it does not advertise or promote infringement in any way. When users sign-up for a YouTube account, they agree on click-wrap terms of use that clearly leave all responsibility of ownership with the person submitting the video. The relevant clause reads:

In connection with User Submissions, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant YouTube all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage YouTube or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business: (v) impersonate another person. YouTube does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and YouTube expressly disclaims any and all liability in connection with User Submissions. YouTube does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and YouTube will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another's intellectual property rights.
The question then is if Mr. Tur has requested that his copyright works be removed from YouTube servers. Although it is not clear from the reports, my guess is that he has not, otherwise he would not be filing this suit.

Fred von Lohmann from EFF has written a timely article on why he believes that YouTube is acting within its rights. This one is another one to watch, but in my humble opinion this case should be an easy victory for YouTube.

Update: In an interesting related news item, YouTube has announced that it serves 100 million videos per day.

1 comment:

pangloss said...

YouTUbe , like eBay, is protected by DMCA safe harbor in US (and ECD regime in EU). ie immunity if no knoweldge, subject to NTD. So, yes, failing some kind of inducment theory (or in EU, constructive knoweldge?) this one is a no-brainer.
In some ways it does seem odd that it is easier to get away with "sort of knowing" copyright infringement is going on, if you actually host the infringing material rather than merely point at it (like Grokster or Pirate Bay ) though..