Internet Law - Fall 2007

No haven for YouTube

Section 512 outlines the limitations on liability for material online, and in particular 512(a) limits the liability of a service provider when the communication is regarded as transitory. So in order for YouTube to take advantage of that generous exception to liability it would need to satisfy the five elements contained therein.

As it has already been made clear elements (1), (2), and (3) are easily satisfied because the transmission is always initiated by the user, through an automatic process, and YouTube doesn't select the recipients but rather responds to requests. The real problem comes with the language of element (4) that reads "for a longer period than is reasonably necessary for the transmission" because, as Brian correctly pointed out, YouTube seems to do the complete opposite. Precisely this is what makes YouTube more like an archive than a transitory digital network. Finally element (5) is up for debate, but would probably not be enough on its own to attach liability because an argument can be convincingly made that the alleged modifications made by YouTube are not to the material itself but rather to its interface in order to enhance user viewing.

In any case, 512(a) does not cover YouTube and more than that, the appropriate provision to analyze YouTube under is 512(c) - Information residing on systems or networks at direction of users.

you tube recap

a little late, but nonetheless, let's try to apply 512 to youtube:

Threshhold: Is Youtube an infringer? Assuming the plaintiff has a valid copyright in the work, is youtube a direct infringer?

Net com doctrine refuses to attach liability to 3rd parties unless there is some sort of volition on the poster's part to infringe. Not the case here; why would youtube want to copyright infringe? Also, the fact that they police their own sight cuts against volition.

Vicarious? Need rt and ability to control, plus direct financial benefit. The first two prongs are satisfied, but direct financial benefit? Is advertising revenue direct? Ambigous.

Contributory? Need actual knowledge and some hint of inducement. Actual knowledge is tough to prove; analagous to being there when infringement took place. Constructive? Sony kills this thread as youtube undeniably has substantial non-infringing uses (making your own movie).

512? This provides safeharbors for directly infringing ISPs.

Assuming Netcom does not apply and thus youtube is a direct infringer under MAI because it is system that uploads copies,

Threshhold: Is Youtube an ISP? Under 512a's broad definition section, Youtube fits so a safeharbor may be applicable.

Safeharbors do not apply if the isp is a vicarious or contributory infringer. Vicarious is the same test and there is no answer because of the direct financial benefit ambiguity. Contrib is a different concept of knowledge here. From actual to redflag which is analagous to someone telling you they sent you an infringing copy. Again, if no facts of such knowledge, constructive would run into Sony again.

How was that?

Youtube

I believe that the statute does apply to youtube because as per 1 youtube transmits the copyrighted material as soon as it has been uploaded unto their servers.  When you go to youtube it shows all the latest released clips and top clips which means that at some point it will be transmitting copyrighted content itself.  As per 2, youtube decides not to air pornopgraphic videos or videos it deems to be unsavory therefore the process of posting videos may not be totally automatic.  Under 3 Youtube does in a sense select recepients of material.  If I search for Billy Idol it will pop up a display of other similar videos which are related to billy idol.  So in a sense they are selecting the content other than what the users select for them to see.  As to 4,  all of the content is permanently stored on the youtube servers for users to access at their whim.  Finally, as to 5, while the content may be uploaded to the system and not altered by youtube itself, many people then take the files and make parodies of them and repost them.  So, again in a sense through the use of the youtube site the files are being modifed and transmitted through the system.

YouTube is not in the business of Transitory Digital Network Communications

Under the construction of 17 USC § 512(a) YouTube communications fail to meet two of the five criteria requisite for them to avail themselves of the subsection (a) safe harbor for service providers through which transitory digital network communications flow. We'll go through the five points one by one:

1. Transmissions of material via YouTube are initiated by site viewers so this YouTube meets this element.
2. Transmission, routing, and etc. are also handled automatically without selection by YouTube so this element is in their favor as well.
3. YouTube also doesn't select recipients, so they're fine on this element
4. YouTube does not meet this element because they store and maintain digital copies of video clips "for a longer period than is reasonably necessary for the transmission, routing, or provision of connections."  Generally, YouTube stores things indefinitely, which is the exact opposite of this requirement of only temporary storage necessary to affect transfer.
5. YouTube also (arguably) modifies content added to its site by reformatting all video's from mp4, .wmv or .mov into .flv format and in some cases cutting to meet length limits.

The result of YouTube not meeting all five criteria is that they can not avail themselves of the safe harbor of subsection (a) and so could be held liable for copyright infringement claims for monetary, injunctive or other equitable relief.

17 USC 512(a) - YouTube

In my opinion, Subsection 512(a) probably does NOT apply to YouTube and does not protect it from liability. All 5 factors must satisfy and YouTube fails on 2 counts.

First, it fails (4). YouTube does store the material for an extended period of time. Videos uploaded since its creation are still on there and I think this storage time far exceeds what is "reasonably necessary" for a transient and intermediary transmission. The only crack is when it states " in a manner ordinarily accessible to anyone other than anticipated recipients". What if I upload my infringing video, and my anticipated recipients are "everyone who uses the internet", as most YouTube users tend to?

Secondly, it fails (5) until someone defines "modification of content". YouTube converts the format of videos uploaded to their servers before it is displayed. Due to this, no video is an "instant post". It also causes changes in the quality/clarity of the video and sometimes disturbs the sync of video to audio. I would argue this is a modification.

All that said - I love YouTube. I hate these horribly worded copyright laws.

17 USCS 512(a)

I think that 17 USCS 512 (a) does apply to YouTube, assuming that it fits the definition of a "service provider" for that section.  (1) The transmission of material starts with a third party uploading a video and ends with another third party or parties watching that video.  YouTube neither initiates nor directs the transmission.  (2) YouTube does not select the material to be transmitted to the users.  It occurs by automatic program operations.  (3) YouTube does not select recipients of the material; the recipients select the material they wish to view.  (4) I am not sure about this element.  I don't know how YouTube maintains the videos or anything like that.  I defer to the opinions of the more technologically savvy students below.  (5) YouTube does not modify the content.  They may delete users and all the videos posted by the user but they do not edit the videos.

youtube

I don’t believe that YouTube would be liable under 17 USCS § 512.  This section provides five elements that, if satisfied, the service provider will not be subject to liability.  Under section A (1), YouTube does not “initiate” the “transmission of material”, but instead is left open as a public forum.  Under A (2), YouTube does not use a selection process, but instead all visitors to the site are allowed to post their videos, so this seems to be satisfied.  Under A (3) the site does not interfere with who receives the information.  Under A (4), there is some room for interpretation about how long the data is held by them, so this element could determine whether they should be liable.  A (5) is also satisfied because YouTube does not modify the content of the posted media.  Although I would need to know more about the technical set up of YouTube to know for sure if A(4) is satisfied, I believe that YouTube should not be liable under this statute.

Why can't 512(k)(1)(A) and 512(k)(1)(B) get along?

I think that 17 U.S.C. s. 512(a) does apply to YouTube because 512(k)(1)(A) distinguishes the use of “service provider” in 512(a) from the use of “service provider” in the rest of the section. In the rest of the section “service provider” means “a provider of online services or network access.” I believe this refers to what we normally think of as an ISP - Verizon or Time Warner Cable for example - but for the purposes of 512(a) the statute is referring to something different when it uses the term “service provider” - why didn’t the drafters just use a different term? Lobbies? Compromises? Perhaps they just enjoy screwing with law students? But clearly 512(k)(1) tells us that the term “service provider” means something different in 512(a) - it means “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received” - that seems, potentially, very broad to me – broader than “a provider of access” – and could apply to everything but the end user and, I think, likely applies to a website like YouTube.

Whose Tube?

YouTube seems to meet the 5 elements under 17 USC §512(a). First, users, and not YouTube, upload material onto the website.  Second, while YouTube can remove certain content upon notice by either users or copyright holders, material is automatically uploaded onto YouTube as opposed to being selected.  Third, anyone can go to YouTube’s website to see material that has been uploaded on the site; YouTube does not select recipients to see material. 

The fourth element under subsection 512(a) is the most complex to analyze; it is questionable whether YouTube makes a copy or maintains material uploaded by users onto its website in a manner ordinarily accessible to anyone other than anticipated recipients.  I think this would depend on whether YouTube continues to store material on its system, or completely eradicates material after it has been notified of copyright infringement.  The second part of the fourth element (“and no such copy is maintained… in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary…”) is most likely met because users of YouTube are prevented from accessing material once such material is determined by YouTube as infringing a copyright.

Additionally, the fifth element is met because YouTube does not modify content that is uploaded by users.

While YouTube may not face liability under section 512(a), YouTube still faces the challenge of providing its service to users while also providing copyright holders control over every use of their works.  This, to me, seems anomalous because of the nature of the service YouTube provides.

YouTube & 512(a)

I do not think 512(a) applies to YouTube. The key to YouTube escaping liability pursuant to 512(a) is the fact that this provision is directed at service providers and YouTube is not a service provider - its a website. However, for the sake of going through each factor listed under 512(a), if YouTube were a service provider, it still might escape liability (though obviously not as easily). Under (1), the posting of material on YouTube is done by users and not YouTube itself; this would weigh in YouTube's favor. Under (2),  material is not selected by YouTube - it is a total free-for-all where any 15 year old with an acoustic guitar in his bedroom can automatically subject the entire information super-highway to Nirvana covers, again weighing in YouTube's favor (though YouTube does have the power to take material off the site, so it may not weigh as strongly). Under (3), YouTube doesn't control who accesses the material on the site - again weighing in YouTube's favor. Under (4), I'm not 100% sure what the answer would be. Finally, under (5), I think its clear YouTube doesn't modify the material posted (please see the above reference to teenage acoustic guitar covers) - although perhaps their capacity to take material off the site could fall under this factor.