YouTube: The New Radio Star?

With the rise of online file sharing and data-streaming, copyright infringement is currently at an all time high. Now, the future of the industry finds itself in the middle of a tug-of-war battle between the conventional methods of media giants, and the progressive ideals of today’s most cutting-edge companies. On June 23rd 2010, a federal judge sided with Google’s YouTube in 3-year legal battle over copyright infringement accusations made by The Viacom (‘Vi’deo & ‘A’udio ‘Com’munications) Corporation. The decision could be prompting a great deal of change in copyright law and the ways in which artist materials are handled.

In early 2007, Viacom programmers noticed that YouTube was streaming thousands of their copyrighted videos on its free website, without their permission. YouTube— having just caught on with the majority of online users— was quickly becoming known as a place that almost anything could be found and viewed without payment or membership. In an official statement, Viacom stated that YouTube “[is] liable for the intentional infringement of… Viacom’s copyrighted works… for [it] had actual knowledge and were aware[1]” (i.e., that infringing activities were apparent on its website but failed to act swiftly to stop it).
In addition to streaming the videos, YouTube was generating a significant amount of profit from the vast amounts of advertising that it hosted on pages featuring the illegal material. The court recognized that YouTube not only had the knowledge, but “welcomed” such activity by encouraging its millions of users to upload content without regard for infringement-prohibiting laws. It wasn’t until the company was presented with an official DMCA Takedown Notice that they began assigning “designated officials” to the task of removing the videos from the website.

DMCA Takedown Notice Provisions have been a controversial issue in Washington since their passage in 1998. The laws are mainly criticized based on the fact that they allow copyright owners to take down infringing web links and content, without first providing proof that the material had even been infringed in the first place. Upon receiving notice, the alleged offender is given a set period of time to take down the material. If there is any doubt towards the validity of the accusation, the offender has the option to file a counter-notice— claiming in good faith that the content was lawfully used. If such counter-notice is issued, the copyright owners can either file a lawsuit or allow the material to remain on the Internet. These procedures are considered complicated and are heavily slanted in favor of copyright holders.

With all of the accusation directed towards YouTube, the company took very aggressive action to remove all of the illegal material from its website. In this particular scenario, the DMCA notification regime worked quite efficiently, considering that after over 100,000 infringing videos were red-flagged by Viacom, one single Mass Takedown Notice— filed in February 2007¬— was all it took to get YouTube to remove all of its illegal material. In fact, by the end of the next business day, YouTube had already deleted almost 100% of the videos. This compliance— along with the protection that the company was afforded under the Digital Millennium Copyright Act— prompted the court’s favorable decision towards YouTube on June 23rd, 2010.

At the core of Viacom’s interest is a demand that YouTube should devise a system to catch every illegally infringed video that’s uploaded onto their website and have it automatically removed, thus ensuring the safety of copyrighted works for everyone. If proved to be effective, this system would completely bypass the current DMCA system— making it unnecessary for owners to send Takedown Notices to users via their online service provider. YouTube has already begun developing an automated system to block suspicious videos from its website.

Implications of the Legal Decision
After the court’s decision was made official, Kent Walker, Vice President and General Counsel of Google, (YouTube’s parent company), reveled in the victory stating that, “this is not just for us, but also for the billions of people around the world who use the web to communicate and share experiences with each other.[2]” He also promised the continuation of the company’s vision to support “the incredible variety of ideas and expression that billions of people” are able to communicate through YouTube. Viacom, on the other hand, has continued its petition by creating a webpage to “provide perspective and legal evidence regarding Viacom’s copyright infringement litigation[3],” asserting that it should be “illegal for companies to build their businesses” with infringed creative materials. Michael Fricklas, Viacom’s Executive Vice President, continues, “the case has always been about whether intentional theft of copyright works is permitted under existing law.” ¬¬

To place things into perspective, the court’s decision reflects an overall shift in control of copyrighted materials— from creators, to users. The explosive success of companies like Facebook, Myspace, and YouTube is foundationally built on the use of content created by musicians and artists around the world. While such a shift is creating some very serious instability in the music industry, consumers aren’t about to stop using these resources to find new, free ways of accessing the content that they want.

The YouTube vs. Viacom case has taken large steps towards shaping the future face of the Music Industry. Having brought light to the lack of control that copyright owners are beginning to have due to the outdated set laws protecting them, people are starting to wonder what the future holds for the artists and creators of the world. While some view the decision as a win for consumers against “over-reaching content conglomerates[4],” others are concerned that without DMCA Takedown Notices, artists might lose the benefits of copyright ownership altogether. Viacom is currently preparing to appeal the case to a higher court, in hopes that copyright law— through a process of reexamination and/or revision— can still be honored in their favor. The trial’s outcome could mark turning point in the future of music copyrights.
By Ben Hong
[1]Summary Judgment from U.S. District Court: Southern District of New York



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