From Grokster To YouTube... The Supreme Court's Reinterpretation Of Copyright Law Opened Up The YouTube Lawsuit
from the think-again dept
StuCop writes in to point out Larry Lessig's opinion piece in the New York Times about the Viacom/YouTube lawsuit. What it argues is that the Supreme Court had consistently said that copyright issues were a matter for Congress, not the courts, to change. But, nearly two years ago, in the famous Grokster case, the Supreme Court went against its own deference to Congress on copyright matters by expanding the scope of copyright law to include a protection never previously allowed: making it against the law to "induce" copyright infringement. Prior to that, the rules were pretty clear that only actual infringers were liable -- but, as Lessig notes, this slight change now gives copyright holders two separate ways to go after copyright infringers. It can go after them directly (as the law had always held in the past) or, it can now go after any system, technology or tool used to infringe under the "inducement" banner. This should be seen as a huge problem (and it's exactly what many predicted after the Grokster decision came down). As Stu wrote in submitting this: "A court punishing YouTube for material that its users post would be no different than a court punishing Gutenberg in the 15th century for inventing the printing press and holding him responsible for whatever was printed using his invention."
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Maybe we should just shut down the internet, while we're at it...
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Furthermore, companies that develop operating systems pay similar fees/costs to provide the capabilities that they offer. An example of this would be, Redhat Fedora (just one of many distributions of linux) doesn't come OOB with .mp3 playback support. The Fedora project is an entirely open source project, where the system which supports .mp3's is not.
So, going back to my point, I pay $25 every few years to get a new drivers license, I get to drive whenever I want. I pay a, relatively, small fee, I get to do whatever I want to do with some copyrighted material.
Thats not really about BIG BUSINESS, its about giving credit where it is due, wherever that might be.
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I don't agree with Viacom's lawsuit but let's not get carried away with our analogies.
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"Gutenberg INDUCED people to violate current copyright law by inventing the means for people to infringe. Therfore he is liable under the current definition of copyright infringement. This is not getting carried away, it is exactly what is mentioned in the article. Gutenberg would be the largest scofflaw in history under the current legal landscape."
This leads to my point exactly...if the courts side with viacom then communications innovators will end up as criminals which will effectively stifle innovation. If this was the legal environment throughout the centuries then there would be no printing presses, no telephones, no cameras, no radio and no television - progress in communication would have be halted. That can happen today depending on the ruling.
If you want to argue that YouTube is providing a means for it's users to infringe on copyright then you need to apply that argument to all modern methods of communication and that would open up such a nightmarish environment.
I think you cannot hold a method of communication responsible for content created by its user.
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Contributory Copyright Infringment
Analogously, the P2P litigation was valuable for its particular precedents regarding contributory and vicarious infringement on on-line networks and will be referred to as possibly influential to the development of the development of the contemporary online music sales strategy.
The copyright monopoly is limited with various exemptions and once an author creates a work and puts that creation into the world, it cannot be retrieved and protected as it once was. Copyright holders must rely on the courts to protect them from infringement of their copyrighted works and the past P2P litigation was an attempt to compensate the record industry for the distribution of their works utilising computer software.
Consequently, it is essential to look at the reasoning behind the decisions in Sony Corp of America v Universal City Studios, Inc U.S. (1984) and the recent Supreme Court decision in Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd (2005) and the relevant precedents they provide to ascertain their bearing to the future of the online music industry.
Sony v Universal City Studios established the ground rules for secondary infringement of copyright, by utilisation of technology to reproduce copyrighted material. The U.S. Supreme Court held that use of technology (In this case a VCR) to copy copyrighted material, was by itself not sufficient to infer secondary copyright infringement. The court held that even though the VCR was capable of making infringing reproductions of copyright material, Sony was not held liable as the technology could be used for a number of legitimate activities. The U.S. Supreme Court accepted Sony’s defence that one of the principle purposes of the VCR was to permit the user to ‘time shift’ the viewing time of programmes. From this decision the scope of secondary infringement was effectively narrowed by the Supreme Court decision in the Sony case and was read as a significant in-road to the rights of copyright holders.
The Sony ruling was later to be referred to in the MGM v Grokster litigation . The two respondents were Grokster Limited and StreamCast Networks Inc who had created and distributed a software application that permitted users to share digital works across a Pier to Pier network. The Plaintiffs of the litigation were a group of affected copyright holders comprising Metro-Goldwyn-Mayer or MGM & others. The Plaintiffs alleged that the software distributed by the respondents allowed the distribution of the plaintiffs’ copyrighted works amongst its users without an appropriate licence. Further, the respondents knowingly and with intention distributed software to create a network for trafficking pirated music.
The software protocols that were distributed directed users’ computers to become super-nodes, operating as indexes for the purposes of listing available digital content, stored in a ‘shared folder’ on the users’ computer, to be viewed and downloaded. The software allowed users to search for digital content on the network and download the corresponding file from recipient super-nodes on the network.
As the network infrastructure indicated, neither Grokster nor Stream Cast operated a central server to mediate the transfer of the relevant copyrighted material and the respondents claimed that they had no ‘actual knowledge’ of particular transfers on the network and were therefore not liable for secondary infringement.
The Plaintiffs contested that claim and illustrated an overwhelming 90% of users used the respondents’ respective software for illegitimate distribution of copyrighted digital content. The empirical study was to be eventually accepted by both Grokster and StreamCast as an accurate portrayal of the prevalent illegitimate dissemination of copyrighted works on their network; however, they maintained that the network was decentralised and they had no ‘specific knowledge’ of individual acts of infringement for the purpose of establishing liability.
This was contested by the plaintiffs who referred to e-mails sent by users of the respondents’ software, received periodically, which entailed details of particular infringements and were answered by the respondents for the purpose of providing guidance. Secondly, MGM also notified the respondents of 8 million copyrighted files available through the utilisation of their distributed software .
The case revealed to be damning for Grokster and StreamCast as it was indicated that both respondents acted to encourage copyright infringement amongst their respective user base. As regards StreamCast, It distributed a software program entitled “OpenNap”, for the purpose of gaining the established Napster user base which amounted to nearly 50 million participants. The software was compatible with the existing Napster distributed software and aimed to both capture recipients’ e-mail addresses and advertise them as the predominant Napster alternative. Most significantly, Grokster also distributed software entitled “Swaptor”, including a set of instructions acting as a ‘hook’ directing users to their website for the purpose of selling their advertising. Finally, the respondents did not attempt to filter access to any relevant copyrighted material; such disclosures of the respondent’s business strategy indicated a continuing relationship between themselves and their user base, contrary to their claims, that indicated not only inferred knowledge but active encouragement on their part in the infringement of copyrighted works.
However, the Court of Appeal was to uphold the decision of the District Court and refused to establish liability for secondary infringement. The Court of Appeal referred to the Sony ruling that established that if the respondent distributed technology that was capable of “Substantial Non-Infringing Use” it will not evoke liability for contributory copyright infringement; Except If the respondent(s) had actual knowledge of specific instances of infringement of copyrighted material and omitted to act on that information.
The Court of Appeal held that the respondent’s could not be held contributorily liable as they operated a decentralised network which did not amount to ‘Specific knowledge’. In the hearing, the counsel for the respondents referred to page 1021 of the Napster ruling and the Sony case to suggest that just ‘notice’ was insufficient, but must be coupled with ‘material contribution’. It was the voluntary choice of the users themselves to ‘search’ and download copyrighted material, although the technology allowed users to search ‘Meta Data’ for Artists names and Song titles, it allowed legitimate downloading of digital content and the respondent’s provided examples of recordings from the band ‘Prodigy’ to the Bible. The Ninth Circuit Court of Appeal determined that as the software distributor operated a decentralised network, ‘knowledge’ could not be inferred. The Court of Appeal also held that the respondent’s could not be held vicariously liable as they did not monitor the use of their distributed software, users connected directly and It would be impossible to monitor and control user activities.
The Supreme Court decision in Grokster
The Supreme Court later reviewed the decision of the Appeal Court in Grokster. It determined that the Court of Appeal had given a particularly wide view of the ruling in Sony v Universal City Studios. That where a technology is capable of “Substantial Non-Infringing Use”, the designer and distributor of the technology can not be held liable for direct infringement by a third party, based on the adaptation of a patent law principle that when the technology is capable of nothing else but infringement, it is not unjust to impose liability on the software developer for the activities of the users of that technology. The Court ruled that the Court of Appeal’s decision had “rested on an erroneous understanding of Sony” .
The Supreme Court asked whether this criterion was appropriate to indicate liability, perceiving that the test as too wide, admitting technologies with potential legitimate uses that were at best ‘ad minimis’ and at worst blatantly constructed to take advantage of illegitimate copyright infringement.
The Supreme Court in Sony had established that a ‘proportionality standard’ based on numeric data was an incorrect standard by which to determine “Substantial Non-infringing use” and Sony escaped liability despite empirical evidence of 91% infringement . The court determined that the remaining legitimate use of the technology contributed individual commercial value to the product and would amount to a ‘substantial non-infringing use’. However, In the Sony case the Infringement was not preventable and the injunction sought by the Plaintiff would result in the cessation of that technology. Subsequently, the Court determined that the potential to infringe could not be separated from the technology and accepted the affirmative defence of ‘fair use’.
Comparable empirical evidence was also established in the Grokster litigation, and was also not relied on as a standard from which to infer liability. The Supreme Court was willing to accept technology that allowed Infringement by the majority of its users - for the purpose of envisaging the ‘capability of the technology’. This reasoning was based on the consideration of not undermining the development of new technology and innovation, with reference from the Judiciary to prior innovations that had led to copyright infringement at their conception but were realised later as important advancements in technology, from the Gutenberg press to the Apple Ipod.
Breyer J., who presided over the Supreme Court Grokster decision, acknowledged that the non-infringing component of the use of the Grokster and StreamCast software only accounted for the minority of the total use. He referred to the term “capable of” as contemplating the potential future uses of the technology. The Pier-to-Pier technology utilised by Grokster could of course be used significantly as part of a legitimate market If adopted by the entertainment industry, as the VCR was by the movie industry in the early eighties and nineties. The concern of the Supreme Court was to balance the dilemma that “the more artistic protection is favoured, the more technological innovation is discouraged: the administration of copyright law is an exercise in managing the trade-off.” Breyer J. admitted that if the Sony doctrine was more invasive it would undoubtedly protect copyright, however he was concerned about the negative impact this would have for innovation and the development of new technology.
The Supreme Court ruled that the Sony doctrine was miss-applied by the Court of Appeal. While it maintained the Sony ‘Safe harbour’ defence was still applicable, it was not appropriate for it to override all other considerations. Liability was found in the Supreme Court review of Grokster as the business model of the defendants had an unlawful objective. While the defendant’s did not have ‘actual knowledge’ of specific infringements by users of their software, and that the P2P software could have legitimate uses, there was evidence to the contrary that exemplified in their marketing of the software and their business model ‘intentionally’ encouraged the infringement of copyrighted material.
Grokster can continue to be distinguished from Sony, who had simply put a product into the market and profited from the sale of that product. Grokster had operated a business model that gave away their software through license agreements and retained their relationship with the customer to profit from advertising revenue. Grokster had maintained a business model with 90% infringement, when they had the ability to filter out unlicensed content.
Consequently, The Court formulated a new test to indicate liability, that where a respondent distributes technology with the purpose of copyright infringement, as shown by clear, ‘Purposeful, culpable expression and conduct’ then the respondent will be held liable for contributory copyright Infringement. This represents an initial vanguard movement against the erosion of the rights of copyright holders feared by the earlier decisions of Grokster.
The essential consequence of the final decision in Grokster for the music industry is the evidence of the respondent’s intent, that without ‘Purposeful, culpable expression and conduct’ to encourage copyright infringement amongst their users, they can still be protected by the Sony ‘safe harbour’ defence. As result of this development in contributory copyright infringement, “…in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial non-infringing uses.” In other words, unless the P2P service acted with the purpose, the subjective intent of encouraging or facilitating illegal infringement of copyrighted works, the courts will not establish liability.
Copyright Tony MacKelworth 2006. All Right Reserved
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Instead, I use a superior technology that is known as Peer to Peer networks. Apparently this technology was not the subject of any of the lawsuits previously mentioned.
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1445: Printing press invented.
1557: The Stationers' Company get a royal charter in London giving them a monopoly on printing books (but no member could print a book another member had claimed) in return they stopped the printing of seditious books. They were entitled to destroy printing presses and books that didn't belong to their members of their guild!
1695: Stationers' Company looses monopoly.
1710: After years of lobbying to get their monopoly back the Stationers' Company instead get the "Statute of Anne" enacted - nearly as good because authors basically had to sell their copyright to the Stationers' Company to get anything printed.
Copyright was about giving the Stationers' Company back their monopoly to some extent, not ensuring authors rights.
But despite that if copyright law had existed like it does today when the printing press was invented it would never have gotten off the ground!
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They are just envying to YouTube, cause for 25 years of MTV, they never could made such audience that YouTube made for a 2 years. They are just like the rest. Trying to get some extra cash from stupid law or patent suits like Microsoft and make a ridiculous in front of all over the world.
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Not everything is black and white.
If things get out of control, then the source needs to be looked at. Youtube is also contributing to this, as they host the video files. By hosting the video files, they accept responsibility for those files.
This is not the same as ISP's. If you get an account with an ISP, your account is private. You put whatever you want on it, and you drive traffic to it. The ISP has little to no control.
In the case of Youtube, the files are shared on Youtube's site. Everyones contributions are put in one big youtube pool. Youtube is responsible for the videos on it's site.
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This makes me wonder how long it will be before a gas station sues the state government for "inducing gasoline theft" because it built the roads that the drive-offs used to leave without paying. That's essentially the same idea, here.
I think the US' new motto should be "build it and they will sue you."
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to: hmmm
You show your ignorance of "common carrier status". I run a dating site. Say someone joins and instead of posting their picture in their profile, they decide to post child porn. Since I am a "common carrier" by merely hosting the site and not contributing to the content, I'm protected from being prosecuted for someone else's actions that I have no control over.
This translates another way as well, if I own an ISP and one of my members puts up a site with pirated software or what-have-you, I'm again protected from prosecution because I don't have anything to do with the content and I'm merely the host. If that member didn't post the software but one of their visitors did via an upload form or whatever, they would also be cleared of any wrong doing as long as they weren't inciting people to do so.
Or if YOU posted a link to, say, child porn here on Techdirt, this site would be protected but you would be held responsible for your actions.
What you've suggested is the opposite: a posted link to illegal files would cause a site to be prosecuted because YOU were doing something you should know better. Thankfully it doesn't work that way and most people understand the idea of the point of demarcation, that place where my responsibility ends and your responsibility begins.
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In the case of Youtube, the files are shared on Youtube's site. Everyones contributions are put in one big youtube pool. Youtube is responsible for the videos on it's site.
Then, bringing analogies up to today's market, you are saying that MySpace should be held liable for any content posted on their website? Any person who posts an audio clip of their favorite song that is protected should have their content pulled?
I mean, let's get this right. ANY P2P or Social Networking site could therefore be sued if YouTube loses this court case. Goodbye freedom and hello governmental restrictions.
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This is totally different.
If there was only 1 printing press, then yes he would be held accountable. Youtube is 1 site and should be held accountable if there are violations on such a huge scale.
If he made multiple presses and sold them to others, then of course he wouldnt be accountable for their actions.
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Stop Whineing and Call Congress
Ala, the mouse that will never die, or the I got you babe bill.
The only way to stop this is to elect people that will change things. As it takes tons of cash to get elected, the ones with the cash have the voice.
I would love to see the average Joe march on Washington DC to protest these two issues.
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re: hmm
What if it was an adult who picked up the gun and shot someone? Were you still negligent?
I think the court would know that the person who committed murder was, indeed, the person who pulled the trigger.
YouTube provides a service. When notified, they will pull content down, and they won't even check to make sure the person sending the DMCA notice actually owns the copyright on the video, or if it's fair use. I'd say YouTube goes above and beyond what they are supposed to do.
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Very true - and lucky for all of us. Gutenberg lived in a period of time when it wasn't quickly becoming illegal for anyone but big corporations to "innovate".
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Unless they never looked at their own website, how did they not know infringement was going on?
Did they profit from it? Of course they did. If those two things can be proven, then they do not qualify for safe harbor.
The difference between YouTube and other things like the printing press is that YouTube hosts the videos. Thats a pretty big difference.
Seems to me YouTube's business model is to profit off of content that they have no right to. That is a problem.
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Yours is the most correct assessment of this suit on here, even more so than the long winded brief by "Tony".
This case, like many lawsuits, will be decided by who profited and who was damaged. YouTube clearly profited, if profits are counted by the number of visitors to the site is the measure. Viacom, on the other hand, may have profited by an increase in viewership of the programs that were uploaded to YouTube.
If Viacom can prove damages beyond profits, they'll have this in the bag. But, you can bet the Google legal eagles will be researching this with the greatest of diligence. I doubt either party will ever see a courtroom.
Ultimately, I think this will be settled in favor of Viacom, where they get preferred placement on the YouTube site.
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re: RandomThoughts
And, certainly, if someone purchases a VCR just to perform copyright infringement, the VCR manufacturer is profiting from this.
RandomThoughts, are you trying to say that YouTube knows what infringement is going on? Remember, the whole AdSense type stuff is automatic; no person(s) at YouTube goes through and attaches ads to videos which they are well aware of the copyrights of.
Sure, they know that infringement is going on, but they do obey DMCA takedown notices even in cases where they don't have to. And, I would say that there are substantial non-infringing uses for YouTube.
As far as "profiting off of other people's content", that's very misleading. YouTube profits from hosting the videos of anyone who wants to put video on the Internet. This is a fantastic service. That it is misused by people is not YouTube's fault, but the person who uploaded the video.
Also, have you considered that YouTube is sparing other companies the cost of support, bandwidth, troubleshooting, etc?
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DCX2
YouTube might not know that as files are uploaded they are pirated, but anyone who would go to the site would quickly see that content was being pirated. I understand that YouTube complies with take down notices, but Viacom probably doesn't think that this works well. Their point is valid, why should they have to do the work? I know that on an individual video standpoint, YouTube doesn't know infringement is going on, but just looking at the site would show that infringement is happening.
One could say that YouTube does the equivalent of a bar owner seeing people sell drugs in their establishment without doing anything about it. Are they the ones selling the drugs? No, but if a bar owner looked the other way enough, sooner or later his liquor license would be pulled.
YouTubes business model could actually be built on a criminal activity model. I understand that most files posted are not criminal, but is that where YouTube makes its money? If the majority of profits are generated by pirated content, then the answer would be yes.
The issue of YouTube saving others bandwidth costs has nothing to do with the suit.
As for the outcome of this case? I don't think it will go to trial, because I think Viacom actually wants YouTube's distribution network and customers. Also, I doubt Google wants to go to trial on this, because if they lose, then every content owner out there will be in line for their day in court. If that happened, I think YouTube gets shut down by Google. Another risk is that YouTube users won't be able to do what they want to do (upload unauthorized content) and decide that YouTube isn't cool anymore and goes to a small player that doesn't filter content.
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A more accurate comparison
That's not actually an accurate comparison. A more accurate comparison would be punishing Gutenberg for inventing the printing press, then creating a vehicle for collecting things that other people gave him to print, then providing the paper, then printing those items, and then creating a distribution network to allow anyone who wanted those printed items to have them, and THEN holding him accountable for everything but the printing press.
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Napster = YouTube
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I cant believe how many of you sheep bend over for
#1. They make it difficult to report violations.
#2. There are hundreds of thousands of violations every day.
#3. They host the files and make profits
I do think that the people who upload the files are the ones really at fault here. They should all get sued by viacom as well. The issue here, though, is that youtube is responsible to keep control. If they can not control the problem, then they need to be shut down.
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Re: I cant believe how many of you sheep bend over
Can anyone say Net-Natzi?
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Understandable ...
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Secondary Liability
Mike, copyright law has for a long time allowed copyright owners to go after people besides actual infringers, specifically those who engage in contributory or vicarious infringement. Inducement is simply another type of indirect copyright infringement.
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Re: RandomThoughts
1) YouTube doesn't do the copying. The user, who uploaded the video, did the copying. You are correct, YouTube is hosting copied video. But, YouTube isn't hooking up a TV tuner card to a TV and capturing video.
2) Web site operators are not responsible for the content that web site users post, as long as they take it down when asked. I believe that's in the law somewhere...
I understand that YouTube complies with take down notices, but Viacom probably doesn't think that this works well. Their point is valid, why should they have to do the work?
So, Viacom is now the judge of YouTube's compliance with DMCA takedown notices? What's the matter, isn't the letter of the law good enough for them?
Why should they have to do the work? Because the DMCA says so. Whether it is right or moral or ethical is beside the point. There's a law, and it has letters, and those are the letters that you read when deciding what you can and cannot do.
The issue of YouTube saving others bandwidth costs has nothing to do with the suit.
I beg to differ. It has been mentioned that YouTube will be found liable if they're making the majority of their profits from infringing content. You have to subtract costs from revenue to get profit.
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(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
I think YouTube violates the first two, if not individually definitely on the whole.
Also, a VCR manufacturer sells the VCR and is done with the product. YouTube hosts pirated material and then distributes it.
The point that I had when saying Viacom doesn't think the takedown provision works well is that Viacom would send a takedown notice on a pirated piece of work, have it removed, then see it posted again, sometimes the same day. Some could say that it seems like YouTube is actually a criminal enterprise.
I didn't get your point about the cost savings of the bandwidth issue, I do now, as I understand subtracting the costs. Course, if someone steals something from me, I don't expect to reimburse them for their troubles.
Like I wrote in my blog, I don't think this one will see a courthouse, too much risk for Google. I think in the end, they will sign a agreement with Viacom and other providers, just like they have done with the BBC and others.
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re:
IMO, people should just realize Google is paying for their bandwidth and be happy about that. Sheesh.
Some could say that it seems like YouTube is actually a criminal enterprise.
But, YouTube/Google is NOT posting the video. Someone else, a John Doe, is posting the video. Viacom has the ability to subpoena this information from Google and go after the person who uploaded the infringing content.
YouTube has substantial non-infringing uses. It hosts a video of mine, for instance, and many other people's home videos. Google makes money off of selling ads when those people visit those pages.
That Google makes money from copyrighted material is incidental to the design goals for YouTube - to allow people to share video. Of COURSE people want to share copyrighted video, but this is incidental to the goal of showing video.
YouTube even has the time limit on videos, so you can't say that they're a criminal enterprise if they're purposefully trying to restrict it from happening.
Also, consider a blog post on blogger. It has ads on it. Suppose the ads deal with someone selling NFL merchandise. Someone clicks on this.
OMG, Google just made money off of someone else's content!
I think YouTube violates the first two, if not individually definitely on the whole.
I would argue the opposite. Nobody at YouTube sits there and crawls through to find copyrighted material. How do the people at YouTube even know who owns what copyrights to what material?
YouTube is not aware of the infringing activity because the whole process is automatic. No individual is aware of any specific instance of infringement. And, it is undue burden to expect YouTube to manually inspect each and every file, and then check with all copyright owners in existence in order to verify that a video does not infringe before allowing it to be posted.
But, this is exactly what Viacom wants...so that way their old distribution channels are still sources of revenue. So that way John Doe can't upload his home video, and instead of looking at YouTube videos all day, Joe Sixpack is going to have to watch TV...
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