“You’ve been YouTubed!”
Access the website http://www.youtube.com and you are almost sure enough to watch your favorite music video, the trailer of your long-expected movie, or a scene from your favorite TV series, in just a click of a button.
Type in your name and you might also see yourself on YouTube!
The emergence of user-generated sites has taken the war against copyright infringement to a higher
level. Unlike traditional battles fought only within the boundaries of a particular land or country, taking down infringing contents is near impossible.
Enter YouTube into the fray and you have one very popular site offering an enticing platform for users to post content for public consumption. YouTube uploads reach hundred thousands per day and it is apparent that a significant percentage of this number involves videos which can be deemed infringing.
This paper shall place the spotlight on how measures are implemented to curtail infringing contents. The paper will see how the Digital Millenium Copyright Act (DMCA) enacted by the United States Congress fares as seen from the eyes of the copyright owners and legal practitioners.
Laws are created to secure the general welfare of the people. It is interesting to see how foreign laws shall tilt the balance in standing up against the phenomena called YouTube.
A. PLAYERS IN THE YOUTUBE BATTLEFIELD
YouTube content can be criticized from the perspective of the copyright holder or the site user.
Copyright holders range from the simple individual content producer to multi-million dollar record companies, film producers, and media organizations. They are required to be the most watchful of the contents of user-generated sites, whether they like it or not. In the Digital Millenium Act (DMCA) of the United States, copyright holders are regarded as the initiators of “take down” actions against infringing content.
Failure by the copyright holder to inform YouTube that a particular video is “infringing” would mean zero action by YouTube to remove that video. The work is cut out for copyright holders who have to review thousands of videos uploaded every day.
The existence of YouTube is ever dependent on its users. These user-generated sites allow access to the public to view content they are interested with. A fan of Michael Jackson can upload any of Jackson’s hits on YouTube and he can be sure that thousands will view the content in a matter of days. YouTube looks like a simple venue for these transactions to take place. Freedom to express one’s interest and share it to the world is the reason why people identify with YouTube so much.
Let it be emphasized that not all YouTube users are abusive and unmindful of copyright laws. It is just that some users recklessly record videos and upload them at YouTube unaware that their content very much breaches the parameters for a copyright-free material. Those “some”-users, unfortunately, upload too many videos than copyright holders can manage.
B. DIGITAL MILLENIUM COPYRIGHT ACT
Pursuant to World Intellectual Property Organization Copyright Treaty, the US Congress enacted the
Digital Millenium Copyright Act which criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works.
The passage of the Digital Millenium Copyright Act gave user-generated content (UGC) sites such as YouTube a “safe haven” to operate without being hampered by complaints from copyright-owners.
This law is seen to answer the concerns of copyright-owners over the tedious job of detecting copyright infringement over the net. Record companies, in order to protect their right for materials they produce, consistently look for alternatives to better apprehend violators.
The February 2009 issue of the ABA Journal Magazine notes the weakness in the DMCA. Since the right to notify UGC sites to “take down” allegedly infringing videos rests with the copyright owners, these people or companies have given out many “take down” notifications. The problem arises when copyright owners do not extensively assess the material to properly classify it as infringing.
During the Beijing Olympic Games in 2008, the International Olympic Committee issued a take-down notice for YouTube to remove videos with the title “Beijing Olympics Opening Ceremony”. Jessica Litman who teaches copyright law at Michigan State University points to this case as an example of copyright owners over-using their capability to take-down infringing content. Upon closer examination of the video, it did not show the actual opening ceremony of the Olympic Games but a protest made by an organization called the Students for a Free Tibet. They were protesting outside the Chinese Consulate at New York City. A larger outcry came from people who criticized the International Olympic Committee for being too vigilant.
Record companies are mostly prone to have their materials “copied” by others. Their products range from simple jingles, to multi-million dollar films. Certainly, the DMCA has given them the power to protect their interests on their work by removing copyright incursions on user-generated sites. Removing an infringing material today does not guarantee that three or more uploads of the same copyrighted material will be available on the web tomorrow, especially if the content has appealed to millions of people around the world. Jefrrey Neuburger, a New York City attorney, notes that the DMCA never saw the possibility of UGC sites would develop and eventually become so popular.
This is why copyright-owners work doubly hard to curve out infringing materials. As more and more videos are uploaded, there is lesser time to really look at them. Based from the Beijing Olympic Games example, scrutiny has become so shallow that the “take down” notice was based solely on the title of the video.
Record companies look to apply technologies to automate process for removing allegedly infringing material. According to United States lawyer Steven Seidenberg, as many as 250,000 clips are uploaded in YouTube every day. Given that one clip is uploaded by one individual, a record company must look into hundreds of thousands of video per day. It is expected that programs that can pinpoint content copied from the original will hasten the work of copyright owners.
Increasing the liability of YouTube and other similar sites is also lobbied for by record companies. These sites that serve as platforms for user-uploaded content say that their users are the ones who are responsible for the presence of infringing material.
Lobbying for tougher laws and stricter measures likewise is a consistent activity for copyright owners. The DMCA stood to balance the interests of record companies and web service providers. There is, however, a seemingly lack of sharper teeth to discourage individuals from uploading content and for service providers to be more proactive in filtering videos in its systems.
DMCA Saves Online Video Site
In the case filed against Veoh, a California-based company which runs an Internet Television service for infringement of copyright, the US District Court for Central California ruled that the site was protected from claims of copyright infringement under the “safe harbor” provision of the Digital Millennium Copyright Act.
A similar decision was ruled by US Southern District Court Judge Louis Stanton for the $1-billion suit filed by Viacom against YouTube. The judge ruled that Viacom cannot seek punitive damages against YouTube.
Philippine TV channel ABS-CBN also sent a notification to YouTube to remove all its copyrighted materials in accordance with the DMCA guidelines. Said law provides for the immunity of the Service Provider, to wit: “Under the notice and takedown procedure, a copyright owner submits a notification under penalty of perjury, including a list of specified elements, to the service provider’s designated agent. Failure to comply substantially with the statutory requirements means that the notification will not be considered in determining the requisite level of knowledge by the service provider. If, upon receiving a proper notification, the service provider promptly removes or blocks access to the material identified in the notification, the provider is exempt from monetary liability. In addition, the provider is protected from any liability to any person for claims based on its having taken down the material. (Section 512(g)(1))”.
C. YouTube Solves its Dilemma
As a result of lawsuits faced by YouTube for copyright infringement initiated by Viacom, Mediaset and the English Premier League, It introduced an advanced set of copyright policies and content management tools to give rights holders control of their content. These are the (a) Content Verification Tool – this is designed for copyright-holding companies to issue multiple removal requests; (b) Copyright Infringement Notification – It entertains written notices of alleged infringement and responds accordingly; and (c) the Audio ID and Video ID – Identify user-uploaded videos comprised entirely or partially of their content, and choose, in advance, what they want to happen when those videos are found. They can get stats on them or block them from YouTube.
By adapting these tools and in consistent with the provisions of DMCA, YouTube can no longer be held
liable for any infringement activities committed by its subscribers.
Media is an entity composed of three powerful mediums: television, radio, and print. Each has its own forte but all contribute towards the delivery of content to the masses. These three mediums know almost no boundaries. They are accessible almost everywhere, anytime at less cost or no cost at all.
Media encountered an evolution in the twenty-first century. The wide-scale growth of the internet has created an information boom. Providing content is not just confined to media entities. Ordinary people with internet access have become content providers themselves.
The internet is the main transport towards the vast expanse of the world wide web. Websites have multiplied over the years. Their capacity to transmit information has also ushered a new wave of issues concerning the morality of the contents and the privacy of parties who form part of the content.
The passage of the Digital Millenium Copyright Act provides ISPs, hosting companies and interactive services immunity for the intellectual property violations of their users. YouTube adopts measures to save its existence by implementing sets of Copyright Tools. The YouTube’s policy to remove copyrighted clips once alerted to their existence is being implemented since then.
As long as YouTube follows the take down notice, it cannot be held liable for any copyright infringement of its users. Indeed, YouTube has found its cloak against infringement liability. Had it not been for the DMCA, the Court would find it impossible to gauge the interests of both copyright owners and users.
YouTube spokesman Ricardo Reyes said “We definitely depend on the safe-harbor provisions.”
- David Kravets.10 Years Later, Misunderstood DMCA is the Law That Saved the Web. (Accessed October 27, 2009).http://www.wired.com/threatlevel/2008/10/ten-years-later/
- Criticism of YouTube.(Accessed October 27, 2009). http://en.wikipedia.org/wiki/Criticism_of_YouTube
- Steven Seidenberg. ABA Journal Law News Now. Copyright in the Age of YouTube. February 2009 (Accessed September 16, 2009).http://www.abajournal.com/magazine/copyright_in_the_age_of_youtube/
- Don Dodge. The legal issues around YouTube. (Accessed on September 16, 2009). http://dondodge.typepad.com/about.html
- Greg Sandoval. CNET News. Judge sides with YouTube on several copyright issues. (Accessed September 16, 2009). http://news.cnet.com/8301-1023_3-10281571-93.html
- Copyright Office Summary. THE DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998, December 1998. (Accessed October 28, 2009). http://www.copyright.gov/legislation/dmca.pdf
- YouTube. Content Management. (Accessed September 16, 2009). http://www.youtube.com/t/dmca_policy
Author licensed this article under Creative Commons Attribution 3.0 Philippine license