My first go to guy on all things DMCA, copyright, and digital law and policy is the EFF’s Fred von Lohmann. I started an email interview with him prior to the GooTube deal, and it only seems more salient now. Read on for Fred’s insights:
Is YouTube on safe legal ground, given all the recent press and buzz around copyright?
Well, virtually no one in the Internet industry is on “safe” legal ground. As any copyright lawyer will tell you, the legal standards governing all Internet businesses are still more uncertain than we’d like. Just witness all the litigation that companies like Google and eBay are involved with.
Of course, when most people think about potential legal liability for YouTube, they are thinking about potential copyright risks. And although nothing in the Internet legal realm is entirely certain, YouTube looks to be on relatively firm legal ground. Unlike some more aggressive companies (like the old Napster), YouTube has the benefit of a set of special “safe harbors” created for online service providers as part of the Digital Millennium Copyright Act (DMCA). If your activities fall within the safe harbors, as defined in Section 512 of the Copyright Act, you can’t be liable for money damages for copyright infringement based on those activities. There is a different safe harbor for each of the following activities: providing network access (e.g., your ISP), caching, storing material on behalf of uses (e.g., web hosting), and providing information location tools (e.g., search engines and linking).
One of those DMCA safe harbors was designed to protect providers of hosting services. When it was passed, Congress had big web hosting services in mind, but the rules work just as well for video hosting services (like YouTube), blog hosting (like Blogger), and music lockering (like MP3Tunes). There are a number of requirements that a hosting provider must meet, but the most important one is the implementation of a “notice-and-takedown” policy. YouTube has such a policy in place, allowing copyright owners to notify it of infringing videos and taking them down promptly upon receiving such a notice. Other requirements include implementing a policy of terminating “repeat infringers,” which YouTube also has, and registering a “copyright agent” with the Copyright Office, which YouTube has done.
The outer boundaries of the DMCA safe harbors are still being hammered out in court (porn vendor Perfect 10 has been leading the charge on behalf of copyright owners on this legal front). And it’s not just YouTube that is interested in these legal fights — because any legal precedents undermining the safe harbor would put Google, Yahoo, AOL, MySpace, eBay and others at risk–the biggest Internet players have a stake in the outcome.
But so far, so good for YouTube. It looks like YouTube is working hard to keep its boat in sheltered copyright waters.
Given what you just told me, why, do you think, the major media companies – potential acquirers of YouTube – are still wary of the company, as reported in many quarters (I reported as much on my blog)? Is it simply: “I don’t want to be the test case for the DMCA?”
YouTube, like so many Internet pioneers before it, is in the disruptive innovation business, and thus sure to upset many incumbent players. So, despite the fact that YouTube is on reasonably firm legal footing, many media company suitors are probably going to be cautious here. They’ll be wringing their hands, worried that maybe YouTube has gone “too far,” will end up the legal “javelin catcher” out front, and the market will belong to a second-comer (see, e.g., ReplayTV and TiVo). And many incumbent media players are not eager to alienate their comrades (sometimes known as “competitors,” but more frequently known as “deal partners” ) over some new upstart with an uncertain future. Remember what happened to Bertelsman when it invested in Napster?
In this regard, YouTube is nothing new — disruptive innovators are never popular with the popular kids. Just think back on Sony in the days of the Betamax, or Diamond with its category-creating Rio MP3 player. Or, for that matter, Google today, attacked from all sides for disrupting comfy old markets (books, advertising, etc).
Let’s talk about some of that disruption. Where do you come down on the Google books issue?
I’m a big supporter of Google’s Library Project — I predict its legacy will outlive that of Google’s search products. I haven’t bothered writing out my views because they have already been more eloquently put by others.
On the general topic, I couldn’t have put it better than Columbia Law School Professor Tim Wu:
On the copyright law details, Jonathan Band has done a better job than I could:
And finally, on the importance of this effort to culture, I have nothing to add to the eloquent remarks of the President of the University of Michigan:
Now that we know who bought YouTube… do you think Google is going to get sued in any case?
YouTube has already been sued (by LA New Service), so Google is essentially buying that lawsuit. But I don’t think that’s a problem — frankly, precedent set against YouTube will likely exert strong influence over the entire video hosting industry. So, in essence, Google is just getting more direct control over a lawsuit that is important for its existing and future business. And when it comes to lawsuits, Google has top-drawer talent (both in-house and in outside law firms), strategic vision, and a stellar track record. Google’s executives (like AOL’s and Yahoo’s before them) understand that shaping the legal precedents is a critical part of their business.
And it’s important to consider who are the people suing YouTube. I’ve thought for some time that the first lawsuits against YouTube (and other video hosting services) will be from small copyright owners (like LA News Service), not from major media companies. That’s good news for YouTube (and Google). Small timers tend to lack the resources to bring top-drawer legal talent to bear in these fights. As a result, they often lose, creating useful precedents for the Google’s of the world. In fact, Google has already been successful in securing good precedents against unsophisticated opponents who thought that they could squeeze a quick settlement out of Google (Field v. Google, Parker v. Google). What the small-timers don’t appreciate is that Google would much rather spend money on setting a good precedent than on settling.
So I think the YouTube acquisition may well represent a legal opportunity for Google (and the Internet industry generally), rather than a vulnerability. After all, litigation to define the copyright rules for new online services is inevitable — better to choose your battles and plan for them, rather than fleeing the fight and letting some other company create bad precedents that will haunt you later.