Our Case Against YouTube

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By Michael Fricklas
Saturday, March 24, 2007

Viacom initiated litigation against YouTube and Google this month for their long-standing infringement of Viacom's copyrights. Our action has stirred discussion about the Digital Millennium Copyright Act (DMCA) and quite a lot of confusion.

First, let's narrow the debate. YouTube defends itself from copyright infringement based on one narrow slice of the DMCA: protecting service providers who store copyrighted material solely and simply "at the direction of a user." This defense is available only to users who do not have "knowledge" of infringement or who "expeditiously" take down material when they find out they are infringing a copyright. The defense is not available to someone who "derives a financial benefit" from copyrighted material he stores if he has the "right and ability to control" it.

The DMCA strikes a logical compromise among competing interests and is one of many sound policies that have allowed the Web to develop and flourish. Under the act, Web hosting companies have been able to develop with no obligation to monitor every file loaded and downloaded by their users. E-mail operators have been able to safely maintain their facilities without reading every message that passes through their systems. File storage Web sites allow users to back up their hard drives without needing to patrol every file and without fear of copyright liability.

What the DMCA doesn't do is protect YouTube.

YouTube has described itself as the place to go for video. It is far more than the kind of passive Web host or e-mail service the DMCA protects -- it is an entertainment destination. The public at large is not attracted to YouTube's storage facility or technical functionality -- people are attracted to the entertainment value of what's on the site.

And YouTube reaps financial benefits from that attraction through selling the traffic to advertisers. While an e-mail provider is paid to facilitate and manage the exchange of e-mail traffic, and competes in that fashion, YouTube lures consumers and competes by having great content -- a resoundingly substantial part of which it did not create or pay for.

Does YouTube have "knowledge" of copyrighted material on its site? Does it have the "right and ability to control" the content? Yes and yes. If the public knows what's there, then YouTube's management surely does. YouTube's own terms of use give it clear rights, notably the right to take anything down. YouTube actively monitors its content. For example, its managers remove pornography and hate content and, as was recently reported, claim they can detect and remove "spam." Without knowledge and control, how could YouTube create "channels" and "featured videos" sections on its site? YouTube has even offered to find infringing content for copyright owners -- but only if they do a licensing deal first.

Is it fair to burden YouTube with finding content on its site that infringes others' copyright? Putting the burden on the owners of creative works would require every copyright owner, big and small, to patrol the Web continually on an ever-burgeoning number of sites. That's hardly a workable or equitable solution. And it would tend to disadvantage ventures such as the one recently announced by NBC Universal and News Corp. that are built on respect for copyright. Under the law, the obligation is right where it belongs: on the people who derive a benefit from the creative works and are in the position to keep infringement out of their businesses.

Will forcing Google and YouTube to obey the law stifle innovation? Quite the opposite. Intellectual property is worth $650 billion a year to the U.S. economy. Not only does intellectual property drive our exports, it's a key part of what distinguishes developed economies from developing ones. Protecting intellectual property spurs investment and thereby the creation of new technologies and creative entertainment. This creates jobs and benefits consumers. Google and YouTube wouldn't be here if not for investment in software and technologies spurred by patent and copyright laws. It's time they respected them.

The writer is general counsel of Viacom.


© 2007 The Washington Post Company

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