A litigation electromagnet
Since its launch, YouTube has been a magnet for controversy. Corpus Juris looks at the popular video site’s history of threats, lawsuits, and bans with an eye towards understanding what the landscape will look like once the dust settles.
Popular video sharing site YouTube managed to avoid getting into big trouble in its early days. Perhaps due in part to the concept’s newness at the time, various entities simply didn’t seem interested in dealing with YouTube. But Google’s acquisition of the company changed all that. It was as though a switch was flipped: Google’s deep pockets and YouTube’s increasing popularity meant that not only were more videos of everything imaginable being uploaded, but taking action against the service might actually show some results.
And so YouTube became a massive lawsuit electromagnet, attracting legal challenges from across the country and around the world. Google has maintained that most complaints should fall under the DMCA’s Safe Harbor provision—meaning that a web site operator cannot be held liable for infringing material posted by one of its users as long as it complies with removing copyrighted material upon request.
That argument hasn’t stopped everyone, however, from trying to hold Google and YouTube accountable for the content it hosts. In what follows, we look at the legal landscape so far and what the implications of the lawsuits might be for YouTube and sites like it.
The first suit filed against YouTube came just before the Google acquisition, filed by the owner of the Los Angeles News Service, Robert Tur. Footage of the 1992 Los Angeles riots (to which Tur owns the copyright) had been uploaded to YouTube. Tur accused YouTube of not only allowing the uploading of copyrighted content but actively encouraging users to do so. He also complained of difficulty in identifying videos to be taken down because of YouTube’s “moving target” (users constantly re-uploading clips under different titles and tags). Tur’s suit is still ongoing, although he recently told CNET in an interview that he would consider dropping the suit if the outcome may adversely affect the outcomes of lawsuits from other, larger copyright owners.
The next prominent suit was the now-infamous $1 billion Viacom suit. Viacom had been battling it out with YouTube and Google for some time before filing the suit, sending thousands of takedown requests for various TV shows being uploaded by YouTube’s users. Viacom accused YouTube of exhibiting “brazen disregard of the intellectual property laws.” It even went so far as to say that YouTube might be deliberately trying to profit from copyrighted materials by not utilizing a content filtering system, instead forcing content creators to send takedown notices.
The Viacom suit is still some distance away from a trial, and Viacom was at one point a party to Tur’s suit for fear that the outcome of his case—the first one against YouTube—could have far-reaching effects on the its own suit. “The judge in that case ruled that our involvement in our own YouTube litigation precluded us from participating in the amicus,” Viacom’s VP of Media and Editorial, Jeremy Zweig, told Corpus Juris. “We are proceeding with our own litigation.”
But the lawsuits aren’t limited to just those in the US. The English Premier League decided that it, too, would sue YouTube over allowing its soccer videos to be watched on the site. The league said that YouTube “knowingly misappropriated” its content, according to the BBC, in order to exploit the EPL’s intellectual property for YouTube’s own gain. The damages sought in the suit have yet to be specified, and the French Ligue de Football Professionnel and the Federation Francaise de Tennis (organizers of the French Open) have since joined the lawsuit.
Is there an answer to the moving target problem that seems to get YouTube into so much legal trouble? A popular solution proposed by content providers like Viacom is a content filtering system. But YouTube continues to insist that such a system would not be a magic bullet, potentially targeting too many videos—such as parodies and legitimate clips that fall under fair use—or too few videos because of inaccuracies in labeling and tagging. That said, the company has said that it is looking into filtering solutions that will make everyone happy and has more recently said that it is making progress, although no deals have been struck yet.
“It looks likely that some kind of automated mechanism for identifying copyrighted materials will be adopted by many, if not all, of the major video sites,” EFF staff attorney Fred von Lohmann told Corpus Juris. He said that while YouTube may be taking its time in implementing such a thing, a content filtering system is coming “irrespective of the outcome of the Viacom vs. YouTube lawsuit.”
Video sites have a strong incentive to make content providers happy in order to license content from them in the future, and YouTube is no exception. “The key issue will be implementing these tools in a way that leaves the door open for legitimate, transformative uses of copyrighted materials,” von Lohmann said. “That’s the ball that EFF has its eye on.”
But the outcomes of the lawsuits could have a real impact. “As for the Tur case, because it was filed first, it will likely result in a published court ruling before the Viacom suit does. That ruling, in turn, will serve as a precedent that may be persuasive to the judge in the Viacom case. So it’s an important case to watch,” added von Lohmann. “At the same time, most legal observers believe that Tur is going to lose, since he has both a weak legal argument and is vastly outgunned by Google’s legal team.”
That would mean that if any case has some real likelihood to affect the legal landscape of the Internet, it would be Viacom’s. Why the Internet and not just YouTube? The DMCA’s Safe Harbor provisions aren’t just important to video sharing sites; they’re important to almost every sector of Internet-based business. “Nearly every major Internet company depends on the very same legal foundation that YouTube is built on,” said von Lohmann.
“A legal defeat for YouTube could result in fundamental changes to its business, potentially even making it commercially impossible to embrace user-generated content without first ‘clearing’ every video. In other words, a decisive victory for Viacom could potentially turn the Internet into TV, a place where nothing gets on the air until a cadre of lawyers signs off,” he said. “More importantly, a victory for Viacom could potentially have enormous implications for Yahoo, eBay, Amazon, MySpace, and many other Internet companies, because they all rely on the same DMCA Safe Harbors to protect many facets of their businesses, as well. The stakes are high all around.”
Not every entity that takes issue with YouTube goes all the way with a lawsuit. Late last year NBC raised a stink about a particular clip uploaded to YouTube from Saturday Night Live. That clip contained a rap song about The Chronicles of Narnia; the clip became an instant hit and was even credited by the New York Times with driving a whole new generation of viewers to the show.
NBC, however, decided that YouTube shouldn’t be able to capitalize on its work and demanded that the video be taken down after offering it for free via its own web site and for $1.99 through the iTunes Store. NBC ended up striking a deal with YouTube months later, using the service to upload promotional videos for Saturday Night Live and the Tonight Show with Jay Leno.
NBC’s example shows that having content placed online—even if not immediately monetizable through a site like YouTube—can ultimately benefit a network. The popularity of YouTube combined with a funny clip owned by NBC made the Chronicles of Narnia rap an instant hit among a demographic that doesn’t typically watch SNL. It ended up driving sales of the clip elsewhere as well as renewing interest in an otherwise-dying show.
Then there was the brief spat between the (official) Star Wars enterprise and YouTube. Star Wars’ people were dismayed by the fact that some StarWars.com content had made its way onto YouTube and requested that it be removed. YouTube responded by removing all Star Wars-related content, including that created by fans and parodies. George Lucas and gang eventually decided that they were okay with the third-party stuff being on YouTube, and so it eventually came back, but the company made it clear that its material was to stay off of YouTube.
The Japanese Society for the Rights of Authors, Composers and Publishers also raised concerns about thousands of videos created by various Japanese artists and uploaded without their permission. While the artists had been sending takedown requests to YouTube, the organization was upset that the videos kept returning in larger and larger volume, making keeping tabs on the uploaded videos nearly impossible.
The Society demanded that YouTube take measures to prevent infringing videos from being uploaded in the first place, to which YouTube responded that it would try to take steps to prevent users from uploading copyrighted Japanese material. YouTube sent executives to meet with the organization earlier this year in Japan and promised that they would post copyright warnings in Japanese, as well as make a better effort to close the accounts of those who had violated the guidelines.
Some entities—in some cases, entire states and countries—don’t so much have a copyright complaint with YouTube as they do a content complaint.
Iran was one of the first countries to completely block YouTube (among a collection of other sites) from being accessed within the country. According to The Guardian, Iran’s government had been growing increasingly concerned about “private” films on the Internet, which was highlighted by a YouTube video of what appeared to be a popular Iranian soap opera star having sex. Officials attempted to block the site in order to protect citizens from the corruption of foreign films and music, and the ban is still in place.
Not long after Iran’s YouTube block, a judge in Brazil ordered that YouTube be shut down after users kept uploading videos of a well-known Brazilian model having sex with her boyfriend on a beach. YouTube attempted to placate the judge by removing copies of the video as they were being uploaded, but as usual, YouTube’s users continued to upload the video faster than they could be removed. The couple actually filed several lawsuits against the company, the last of which caused the judge to order YouTube off the Internet. However, YouTube has clearly not been shut down, so the judge decided to ban YouTube from being accessed within Brazil. The ban didn’t last long; the decision was overturned shortly thereafter.
The Australian state of Victoria also banned YouTube from 1,600 of its public schools after a gang assault on a 17-year-old girl was filmed just outside of Melbourne and posted online. Education Services Minister Jacinta Allan told the International Herald Tribune that the school system “has never tolerated bullying in schools and this zero tolerance approach extends to the online world.”
Mere days after that, a Turkish court ordered that all access to YouTube be blocked from within Turkey’s borders. The ruling came as a result of a virtual “war” between Turkey and Greece being carried out over YouTube, with both sides escalating insults against each other in video form.
A video was allegedly posted from behind the virtual Greek front lines, saying that Mustafa Kemal Ataturk—credited as the “founder of modern Turkey”—was a homosexual (along with all of Turkey’s residents). Although thousands of Turks wrote letters to YouTube and eventually got the video removed from the site, the Istanbul First Criminal Peace Court decided to ban the site anyway since insulting Ataturk is a crime in the country. The ban was lifted a few days after being imposed.
Thailand, Morocco, and the way forward
Thailand recently became another country to ban—and subsequently unban—YouTube from being by its inhabitants. Like Turkey, the ban came about after “insulting” videos of Thailand’s King Bhumibol Adulyadej started popping up on the site. Some of the videos depicted Adulyadej as a monkey, with others showing his image next to an image of feet (a deeply offensive action in the country and punishable by up to 15 years in prison).
After the ban was put in place, the Thailand Information Ministry announced that it would sue YouTube over the clips. However, YouTube headed off the lawsuit by agreeing to remove the videos, which was apparently enough to placate the Thai government—for the time being. “We decided not to sue Google because it has agreed to cooperate in removing 12 video clips from the YouTube Web site,” ministry spokesperson Vissanu Meeyoo told the Associated Press.
Finally, citizens of Morocco found last week that they were no longer able to access YouTube. Although the state-controlled Internet service provider, Maroc Telecom, claimed at the time that the problem was a technical glitch, they offered no explanation as to why it only affected YouTube. Morocco’s citizens were quick to theorize that the block could be due to citizens uploading videos that are critical of the country’s government. However, just under a week later, access to YouTube from within the country had been restored.
Although the efforts made by these countries to block YouTube don’t necessarily affect YouTube’s operation, they carry implications for services that want to appeal to a worldwide audience. When those services serve up content provided by its users, it will be increasingly difficult—if not impossible—to reign in content that could be considered offensive in some countries while maintaining that freedom for the users in other parts of the world.
One solution could be to open separate, localized versions of the site for different regions of the world, something that YouTube has finally announced it would do. The move allows YouTube to gain some of its lost audiences back by implementing localized sites—sites that comply more closely with the cultural and legal standards of various countries. The side effect is that it would also break up the otherwise unified and culturally diverse crowd that frequents the main site.
The way forward
Needless to say, YouTube is no stranger to controversy at this point. And the controversies are not about to stop; DMCA takedown battles are starting to erupt as recipients of ill-advised DMCA notices begin to fight back. All of the lawsuits filed against YouTube are still ongoing, and the outcomes of those suits could significantly change how sites like YouTube are run in the future.
One way things could change in favor of YouTube is by changing the legal landscape with compulsory licenses. Japan is considering new rules for intellectual property that would allow anyone to redistribute copyrighted content without permission from the copyright holder, as long as they pay royalties for the broadcasts. Although such a law would likely generate a handful of grumpy content providers (as they would no longer have control over where their content is broadcast), it would at least enable webcasters to continue with their current business model without fear. It’s an idea that has found favor with some prominent musicians and more importantly, it would allow content providers to get paid.
But unless such compulsory licenses come to the US, the outcome of YouTube’s lawsuits will determine how things will be run. More importantly, those same suits could set the standard for how any user-submitted content is handled online. If Google loses these cases, the rulings could set a new precedent for what falls under the DMCA’s Safe Harbor provisions—that is, not much. ISPs and other service providers could be held responsible for content that is uploaded through their networks, triggering a whole new level of traffic and content monitoring.
Monitoring at Orwellian levels may not be here just yet, but it could be approaching much more quickly than we think.