Tag Archives: safe harbor provisions

The many angles of Fair Use in copyright

A recent article in the New York Times draws into focus the many differing interpretations and perspectives surrounding copyright law’s doctrine of Fair Use.

The article describes how three separate parties, a young musician, Google’s YouTube service and the Warner Music Group, became entangled over the use of the Christmas classic “Winter Wonderland”

The musician, Juliet Weybret, uploaded a video to YouTube that showed her performing the song. A few weeks later she was informed by YouTube that the video was being taken down because of objections by the Warner Music Group.  Warner Music Group owns the copyright for Winter Wonderland and currently has no licensing agreement in place with Google.

Ms Weybret rightly felt that she was using the song in a noncommercial way and therefore was within the tenets of fair use. She was not gaining financially in any way by performing the song. It was basically a home video that she put on YouTube. The performance is not a money making venture, it doesn’t compete or impede Warner Music Group from earning income from the song. If you look at the performance itself, it is certainly fair use and does not infringe on the copyright in any way. 

Warner Music Group, no doubt, feels the same way about the performance.  However, when that performance is uploaded to YouTube and becomes part of the content of a multi-million dollar enterprise, then the notion of the performance (the video) as fair use is challenged. In Warner’s view, the video now contributes to the income YouTube makes from showing videos on the web.  The use of the video by Google/YouTube is therefore not fair use.  

Use of third party copyrights without permission has dogged YouTube since it became a major Internet presence.  The company initially relied on Fair Use as well as the safe harbor provision of the DMCA as an argument for not removing video content.  That decision created a substantial amount of push-back from copyright holders and a slew of lawsuits followed. Google now has a very high-tech filtering system that will automatically remove videos that use unlicensed content from YouTube.  

From the NY Times article…

Referring to Ms. Weybret, Ben Sheffner, a copyright lawyer in Los Angeles who has worked on antipiracy at the 20th Century Fox movie studio, said, “From her persepctive it’s completely noncommercial because she’s not making a dime. But from another perspective it’s entirely commercial because Google is trying to make money off it”

YouTube/Google will see Viacom in court

The New York Times reports that Google is not interested in settling the copyright infringement suit brought by Viacom. They want a jury trial. Google is relying on the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA) which says essentially that Internet service providers, like ISPs or web hosts, are not liable for the copyrighted material uploaded by their subscribers as long as the service providers promptly remove the material once asked to do so by the copyright holder.

“This response ignores the most important fact of the suit, which is that YouTube does not qualify for safe harbor protection under the D.M.C.A.,” Viacom said. “It is obvious that YouTube has knowledge of infringing material on their site, and they are profiting from it.”

This story sparked over 80 comments on TechCrunch. One of those comments, by a poster name Raj, frames the issue very well.

“Ultimately, the even bigger issue that may arise from the ViaGoog lawsuit is whether DMCA may need to be re-visited to better reflect appropriate use of copyrighted material. The way it is written now, DMCA is being interpreted quite loosely by firms such as Google. DMCA was written to protect copyrighted material from inappropriate use but it seems in reality that firms which interpret it loosely are using it as a protection in a sense to get away with leveraging unconsented content for profit without properly compensating content owners for the material being used. The people who own/create content tend to get [angry] when others utilize their content without consent. Google has gone one step further by monetizing this material by displaying ads next to the video content in question. It will come down to which firm’s high priced lawyers can make a better case about DMCA compliance/non-compliance.”

I believe this case will come down to the court’s interpretation of DMCA and whether YouTube can successfully claim they are just a “service provider”.

Personally I think they are more than just a service provider. The Digital Millennium Copyright Act became law in 1998 under President Clinton. Back then it was intended to give ISPs some protection from liability if one of their hosted sites uploaded copyrighted content – like say – hacked versions of Microsoft Word.

But YouTube is more than a host – it tags all of its content, there are cross-referenced links to similar content. I can view a bootleg copy of a Rolling Stones performance and the site will show me tags for other similar bootleg Stones videos and it will then also offer linked recommendations to view similar bootlegs from Bob Marley for example. In other words, YouTube is actively engaged with its content, its not just sitting there as a mere host. There is a database in place that aggregates the content and offers users its results.

At some point in 2005 the folks at YouTube made a decision to allow the uploading of copyrighted material to the site. That decision led to the immense popularity of the site and an eventual $1 billion windfall. Now that decision will have its day in court.