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.

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.

It's YouTube...not WeTube

According to 17 U.S.C s. 512, I do not believe that YouTube is liable for copyright infringement.  YouTube is a Transitory Digital Network.  It is a service provider that allows users to post material; hence the name:  YouTube! If they were sifting through all of the material that was sent to them to see what was “best”, then they would be liable for copyright infringement.  They would also have to change their name to WeTube or UsTube, and that just doesn’t sound right.

YouTube fits into all 5 exceptions of Section 512, so they cannot be held liable.  1) The copyrighted material is posted by a user, not YouTube themselves. 2) YouTube does not manually select material that is posted.  Although I’m sure “indecent” posts get taken down.  3) YouTube does not select the recipients of the material; the posts are for all to see.  4) I do not think that YouTube copies any of the material.  5) YouTube does not edit any of the posts.

Youtube

Clearly this statute was not drafted with Youtube in mind, so shoehorning it into these parameters will take some creativity.  First of all, I think it may be possible to squeeze Youtube into the definition of “service provider” in section (k) of 512.  Although, I think the hardest element of the definition to satisfy is the “between or among points specified by a user” element.  It seems obvious that the other elements are met:  they offer the transmission, routing or providing of connections for digital online communications, the material is of the user’s choosing, and they do not modify the content of the material as sent or received.  The “between or among points specified by a user” element sounds, to me, more similar to what we generally think of as “service providers” – like an email application or an ISP.  With Youtube, it seems the “points specified by a user” are the Youtube servers themselves.  It all seems a bit curious to me. 

If Youtube is to be considered a “service provider” under section (a) they must satisfy each of the five subsections.  Subsection (1) is probably met, even though Youtube is the one asking users to post videos.  Subsection (2) certainly weighs in Youtube’s favor.  Subsection (3) is an example of what I mentioned above, that Youtube does not fit neatly into this analysis.  Youtube does not technically “select the recipients of the material,” instead, it is posted for any passerby to view, so this subsection may be met.  Subsection (4) again does not fit neatly, but it may be where Youtube loses its shirt.  The material is stored on the Youtube servers and available for view by all (until someone claims copyright infringement and they are forced to take it down).  Subsection (5) is met: Youtube does not modify the material transmitted through its system. 

It wouldn’t seem fair to let Youtube off the hook for their copyright infringement.  Clearly it’s a problem and the technicians, in their infinite wisdom, should figure out how to solve it.