Cyber Space Law: Viacom versus YouTube - Case Study Example

Introduction Online video has become the dominant online entertainment source, led by the global popularity of YouTube. YouTube attracted more than 250 million visitors in January 2008 (Comscore, March 18, 2008) accounting for one-third of the 9.8 billion videos viewed online in the U.S. during the month (Comscore, March 14, 2008). YouTube was created in 2005 as a platform for sharing videos and today it has become a world’s most popular video sharing site and a billion dollar business. Google acquired YouTube in 2006 for $ 1.65 billion. While YouTube is soaring in its popularity, it is facing serious copyright issues for its user generated content. Entertainment giant Viacom (that owns MTV, Nikelodean and movie studio Paramount) filed a $1 billion copyright infringement lawsuit against YouTube and its parent company Google. The case has been filed in United States District Court for the Southern District of New York. The case represents one of the greatest copyright challenges in the history of U.S. copyright law. VIACOM vs. YOUTUBE Viacom’s Complaint On 13 March 2007, Viacom International Inc (leading entertainment conglomerate of U.S.) filed a case against YouTube and Google for intentional infringement of copyrights. Viacom in its complaint has claimed that YouTube has 150,000 unauthorized clips of Viacom’s popular shows (BBC News, March 13, 2007) that have been viewed by its users 1.5 billion times. Viacom alleged that there is massive posting of pirated content on YouTube and YouTube is intentionally infringing the copyrights laws in order to attract more traffic and generate advertising revenue. It is knowingly allowing the users to post infringing clips as it is making huge profits from the direct availability of such popular programs on its site (CNET News, March 13, 2007). The Causes of Action Viacom has argued that YouTube is misusing the digital technology to encourage copyrights infringement on the internet. It has asserted that YouTube is aware of infringing material on its site. Viacom has stated in its complaint (Viacom v. Google, Para 4) that: Defendants actively engage in, promote and induce this infringement. YouTube itself publicly performs the infringing videos on the YouTube site and other websites. Thus, YouTube does not simply enable massive infringement by its users. It is YouTube that knowingly reproduces and publicly performs the copyrighted works uploaded to its site. YouTube deliberately built up a library of infringing works to draw traffic to the YouTube site, enabling it to gain a commanding market share, earn significant revenues, and increase its enterprise value. YouTube has deliberately chosen not to take reasonable precautions to deter the rampant infringement on its site. Viacom in its complaint has alleged six causes of action of copyright infringement against YouTube and Google. These causes of action are: Public Performance Public Display Reproduction These three causes of action hold YouTube and Google liable for direct copyright infringement. Inducement of copyright infringement Contributory copyright infringement Vicarious copyright infringement The last three causes hold YouTube and Google liable for secondary or indirect copyright infringement. Direct Infringement Claims Public Performance: Any audiovisual work will be considered public if it is shown to multiple people (outside of family circle) repeatedly without the permission of owner. The plaintiff has claimed that defendants (YouTube and Google) have allowed public performance of the copyrighted videos (such as ‘SpongeBob SquarePants’, ‘The Daily Show with Jon Stewart’, ‘MTV Unplugged etc.) without permission of Viacom. These copyrighted videos have been viewed millions of times by the people. Viacom has claimed that unauthorized clips of Viacom popular shows on YouTube have been watched more than 507 million times by the people (Anderson, May 18, 2010). Public Display: The defendants have allowed public display of the copyrighted videos without the permission of Viacom. It is creating individual frames from videos in its library. After creating frames, it displays thumbnail images of Viacom’s videos to help users locate the video more easily and quickly. It has been argued by Viacom that this process of creating and displaying thumbnail images is not automatic but intentional so as to attract more users. Reproduction: Viacom has claimed that YouTube is multiplying the copyrighted videos without the permission of Viacom. It has been alleged by Viacom that although the videos are uploaded by users but YouTube is converting the original videos into other formats such as flash. It is storing the copies of infringed videos in its library. Indirect Infringement Claims Inducement of copyright infringement: The defendants are liable for inducing the users to upload copyrighted videos on YouTube. YouTube claims to be forum for sharing original content of its users. YouTube is promoting and encouraging users to post infringing videos on its website through direct or indirect means. It is offering various features such as ‘embed’, ‘share’ to actively disseminate the popular infringed video clips. YouTube knows that clips of Viacom are copyrighted. It is doing nothing to prevent such actions and thus facilitating copyright infringement. Contributory copyright infringement: The users of YouTube directly infringe Viacom’s copyright by uploading copyrighted videos on YouTube. Viacom has alleged that YouTube is responsible for contributing to the infringing acts of its users. Vicarious copyright infringement: YouTube has full knowledge of infringing activities on its servers. Viacom has argued that the defendants can prevent its users from uploading such infringing videos. YouTube is not taking any preventive measure intentionally as it is getting huge financial gains from these videos. YouTube posts banner advertisements above infringed videos. Therefore YouTube is getting direct financial gains through sale of advertisements. Defenses by YouTube and Google YouTube has denied the copyright charges of Viacom and has alleged that Viacom’s complaint curtails the liberty of internet users. To counter the claims of Viacom, YouTube and Google (Reuters News, May 1, 2007) has claimed that: Google and YouTube respect the importance of intellectual property rights, and not only comply with their safe harbor obligations under the DMCA, but go well and beyond what the law requires. YouTube and Google has presented 12 defenses to counterfeit the charges of Viacom. These defenses are: Safe Harbors, License, Fair Use, failure to mitigate, failure to state a claim, innocent intent, copyright misuse, doctrine of estoppel, waiver, unclean hands, laches, and substantial non-infringing uses (Google Answer in Viacom, April 30, 2007). Google has stated that it is protected under Hosting Safe Harbor of the 1998 Digital Millennium Copyright Act (DMCA, Safe Harbor). The DMCA, Safe Harbor law protects the online service providers if 1.) Transmission is automatic, unmodified without any intervention of service provider.2.) If copyrighted material is being transmitted without the actual knowledge of the service provider 3.) If service provider removes the material from the site once he/she comes to know about it. 4.) Service provider is not profiting directly from infringing material. Google has argued that it is complying with the DMCA, Safe Harbor. YouTube cannot be held legally liable for displaying copyrighted material until the copyrighted material is brought to the notice of YouTube by copyright owners. YouTube has always removed the copyright infringing material when notified by the owner through take- down notices. Moreover, if it takes down an infringed clip, users upload a new version of the same infringed clip. There is no evidence of direct infringement of public performance as YouTube is not involved in any volitional act. The copyrighted videos are being transmitted without the knowledge of YouTube. Google has stated that Viacom is secretly uploading its videos to YouTube through marketing agencies (Schonfeld, May 18, 2010). Viacom has also uploaded some content officially to promote its programs. So it is difficult for YouTube to decide whether to remove the videos from its site or not. Google has claimed that YouTube prevents pirating full fledged shows or programs by blocking the video that is longer than 10 minutes. YouTube has also provided a copyright protection tool to prevent reloading of the copyrighted material after it has been removed from the site (Mills, April 30, 2007). Potential Remedies The legal dispute between Viacom and YouTube suggests that there is need to reform the 1998 Digital Millennium Copyright Act. Firstly, there should be provision of terminating the accounts of users who repeatedly upload infringing material on the websites. The other clause (§ 512(c) of the law states that service provider can be held liable if he/she is receiving direct financial gains from infringing material. The definition of ‘direct financial gains’ is also vague. It cannot be determined easily whether online service provider is getting direct revenue from infringing activities. The law is insufficient for Web 2.0 technologies. The era of web 2.0 has created several problems in the field of copyright law and has challenged the existing framework of copyright law. There are legal risks of using this technology. Digital technology is allowing breach of intellectual property rights at an unprecedented speed. It is difficult for copyright owners to detect all the people who might be infringing their works. The existing Digital copyright law should be tailored to the needs of new web technologies. The rights of copyright owners should be protected by the law but at the same time the law should not deter new approaches of producing, disseminating and sharing the digital content. The law also requires international standards due to universal nature of the Internet (Peters, 2008). Copyright Issues Raised by User-Generated Content Today there is proliferation of user-generated content (UGC) sites such as file sharing sites, social networking sites, blogs, wikis, and virtual sites. Social Networking Sites (SNSs) are growing rapidly around the world with some of these sites now among the most visited websites globally. The sites like Facebook, My Space, YouTube, Flickr, Twitter, Delicious are attracting millions of users everyday. Flickr has more than 2 billion of photos (Arrington, 2007). ‘Evolution of Dance’ created by comedian Judson Laipply, has been viewed on YouTube more than 100 million times (Arar, 2009). These sites rely heavily on content created by its users who post their profiles, upload digital files, personal photos, videos etc. and communicate with friends and express themselves. McKinsey research has revealed that these sites depend on the contributions of its users and 3 to 6 % of the users contribute more than 75 % of the content. The highly personalized form of user generated content is raising various copyright issues. The litigation between YouTube and Viacom is an example of the legal difficulties the user generated content sites may face. YouTube is not the single instance of copyright infringement. Many other user generated content sites such as MySpace have faced similar difficulties (ZDNet News, 2006) in the past. The copyright issues are extending to other user generated content sites such as wikis and blogs. Web 2.0 technologies have made it possible to reproduce and disseminate the works online without the permission of copyright owner. The digital content can be multiplied with least effort and at a little cost. The web 2.0 sites have user-posted copyrighted material. There is abundance of infringing material on these websites. There are thousands of unauthorized copies of photos and videos on the social networking sites. These videos and other material can be viewed by anyone on the internet. These sites provide many controversial features such as mash up, peer to peer file sharing that result in to copyright infringement liability. Many sites provide links to copyright material. Even copying any cartoon character to represent the avatar may infringe the copyright law. The aim of these social networking sites is purely social, but they are also involved in commercial activities like targeted advertising. The personal information shared by users on these social networking sites is being used for the purposes different from the ones the users have considered. The web 2.0 users and sites are challenging the existing copyright laws. Most of the users of Web 2.0 technologies are unaware of the copyright infringement. These sites can guard themselves against copyright liability by complying with Digital Millennium Copyright Act. But the user generated content (UGC) sites argue that they are unable to control uploading or downloading of copyrighted material. Companies like YouTube, Facebook, MySpace are not capable to aggressively impose copyright on their sites. The sites are proving incompetent to prevent its users from posting pirated material to the sites. The main reason is that it is difficult and burdensome to filter infringing material as millions of visitors upload and download material from these sites. This is the foremost reason that these sites are operating in grey zone and copyright law needs to be reformed to cater to the needs of global collaboration. Conclusion The emergence of Web 2.0 has resulted in global collaboration. Web 2.0 is providing an easy interface for users for sharing information and other material such as videos, photos and files. There is cultural shift in the way people communicate and share things. The existing law provides provisions to tackle the copyright issues. The companies can prevent any copyright liability by diligently taking down offending material, terminating the accounts of repeat offenders but the law needs to be adapted to the reality of user generated content sites. It is insufficient for the participatory culture of web 2.0. References Anderson, N. (March 18, 2010) “Smoking guns, dark secrets aplenty in YouTube- Viacom filings” Arrington, M. (2007) ‘2 Billion Photos on Flickr’ TechCrunch Blog Arar, Y. (2009) ‘Evolution of Dance Star Prepares for the Sequel’ News, PC World BBC News (March 13, 2007) “Viacom will sue YouTube for $1bn” CNET News (March 13, 2007) “Viacom sues Google over YouTube clips” Comscore Press Release (March 18, 2008) “Digital World: State of the Internet” ComScore Press Release (March 14, 2008) “YouTube.com Accounted for 1 Out of Every 3 U.S. Online Videos Viewed in January,” Google Answer in Viacom Accessed on May 6, 2010 Available at Read More