United States: YouTube Sued: It’s A Riot

On July 14, 2006, a news gathering and reporting organization filed a complaint in U.S. District Court in Los Angeles alleging that YouTube, Inc., a Web-based video hosting company, has infringed and continues to infringe on the small news organization’s copyrights.¹ Given the facts and issues involved in the dispute, the lawsuit could set the stage for a showdown between legal fair use and free unauthorized use.

Created in 2005, YouTube provides an on-line community for those interested in sharing original videos where users can upload their home videos directly to YouTube’s servers. Although there are more than 100 Web-based video-hosting companies, YouTube leads the market uploading 50 million videos per day to more than 12.5 million people monthly.²

Plaintiff Robert "Bob" Tur is owner and operator of the Los Angeles News Service ("LANS"). LANS licenses and sells news video, videotapes, photographs, etc. used by other news companies for all media.³

Tur’s complaint alleges that YouTube intends to promote infringement of copyrighted works because (1) it makes an effort to attract former Grokster video sharers whom have had a reputation for copyright infringement, (2) its Web site lacks a mechanism to curtail activity that violates copyright law, and (3) it seeks high-volume use which corresponds to greater incidences of copyright infringement.⁴

Let’s assume that YouTube responds by saying that its Web site service consists of non-commercial activity and that it has never acted in a manner that would result in copyright violation. As such, YouTube will point out that its activities qualify as "fair use" and place it neatly within the safe harbor provision of the 1998 Digital Millennium Copyright Act (DMCA).

Section 512(c) of the DMCA relaxes the liability of service providers for infringing material on web sites hosted on their systems and applies to storage at the user’s direction.⁵ The first condition under Section 512(c) is the provider must not have the "requisite level of knowledge" of the infringing activity. The second condition mandates that the service provider not receive a financial benefit directly attributable to the infringing activity. The last condition establishes proper notification and removal protocol commonly known as the "notice and takedown" procedure.

Next assume that there is a determination that YouTube does not have the minimum knowledge threshold, does not profit from the home-made video clips per se, and that it complies with the notice and take down requirement. Would this mean that the shared information on YouTube’s Web site qualifies as "fair use" and does not infringe on anyone’s copyrights?

Tur does not think so. He says that within LANS’ library of more than 10,000 hours of copyrightable audiovisual works are videos like the first-on-the-scene footage of the 1994 O.J. Simpson freeway chase and the Reginald Denny attack at the beginning of the 1992 Los Angeles riots.⁶ Tur alleges that YouTube has infringed the latter video piece more than 5,500 times, and that in less than one week, a version had more than 1,000 additional views.⁷ Although Tur concedes that some activity on YouTube may consist of non-infringing posting of home-made videos, he claims that the Web site is largely intended to promote infringement of copyrighted works.⁸

In MGM Studios Inc. v. Grokster, Ltd., the U.S. Supreme Court held that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties⁹ Grokster, distributed software that allowed peer-to-peer file sharing without the need for central servers. Because it was alleged/claimed that the software was distributed with the principal, if not exclusive, object of promoting its use to infringe copyright laws, Grokster could be liable for contributory infringement, regardless of the software’s otherwise potential lawful uses.¹⁰

Tur states in his complaint that YouTube has made efforts to corner the market occupied by former Grokster video sharers.¹¹ Tur contends that even though YouTube derives a significant amount of revenue developing world-class data centers, it has failed to develop a mechanism to prevent infringing activity.¹² Tur alleges that, unlike its predecessors, YouTube provides the computer servers that facilitate direct video uploading to YouTube’s servers, where anyone can view or download the videos.¹³ Lastly, Tur contends that YouTube’s advertising-centered business model is correlated with a system that rewards high-volume, which in turn fosters infringing activity. Ultimately, Tur alleges that YouTube’s business model and the steps taken by YouTube to enable user friendly video uploading allows it to have actual knowledge of infringing activity.¹⁴

Tur’s suit revolves around YouTube having actual knowledge of copyright violations, which, if found to be true could disqualify YouTube from using the DMCA’s safe harbor provision and expose it to liability. Tur claims that YouTube’s actual knowledge of infringing activity is evidenced through its courting of the "new clip culture," whose members are familiar with sharing digitized audiovisual media.¹⁵ YouTube, allegedly, is aware that it has "morphed and grown" into the "leading video entertainment destination" on the Web resulting in large amounts of both copyrighted and non-copyrighted material being viewed and uploaded.¹⁶

This is the first lawsuit against YouTube alleging copyright infringement. However, this is not the first time that YouTube has been accused of copyright infringement. Earlier this year, NBC sent a cease and desist letter to YouTube following YouTube’s broadcast of a popular Saturday Night Skit. YouTube immediately pulled the clip at the request of NBC, and the situation was resolved without litigation. In the instant case, YouTube claims that Tur never asked YouTube to remove the footage in question prior to filing his suit.

It would be a daunting task for YouTube to ascertain which, if any, of the millions of clips on its website are infringing copyright laws. A cursory review of YouTube’s website demonstrates that it is a storage house for obscure home videos and familiar television broadcasts. A random search of the site can turn up clips from CBS 60 Minutes interviews; a home video of two lovers kissing; home videos of people ranting and commenting about various contemporary issues; vacation videos; and numerous salacious music videos from today’s pop stars. In addition to being entertaining, YouTube provides its users with a forum to share their footage, ideas and artistic creativity. In the YouTube litigation, the Court must decide if a site that provides a forum for a true diversity of political discourse, unique opportunities for artistic and cultural development, and myriad avenues for intellectual activity and recognition should be chilled or shut down in order to protect the rights of copyright holders.

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