YouTube Smoking Guns? What Constitutes Actual Knowledge?

from the this-ought-to-get-interesting dept

Wed, Oct 7th 2009 6:31am — Mike Masnick

With the judge tossing the Veoh/Universal Music lawsuit last month, it certainly appeared that Viacom might be on weak ground when it came to its lawsuit with Google over YouTube infringement. As with the Veoh suit (which was nearly identical) the DMCA's safe harbors on service providers almost certainly should protect the service provider from the actions of its users (which is a good and reasonable thing). However, I'd been hearing rumors for a little while now of a "smoking gun" from Viacom, and Greg Sandoval is now reporting on the same thing: that during discovery Viacom came across emails showing that YouTube employees "knew" and discussed infringing content on the site and did nothing about it. On top of that, some YouTube employees supposedly uploaded infringing content as well. The key question, then becomes, did YouTube have "actual knowledge" of infringement, and if so, does that remove the DMCA's safe harbor provisions.

But, of course, nothing is that simple. When you're talking about a corporation, what constitutes "actual knowledge"? Is it one employee knowing about things? Is it one executive? And how does fair use play into all of this? Even if YouTube employees saw content that was uploaded in an unauthorized manner, were they then supposed to make a fair use determination as well? And, of course, none of this is particularly simple. According to Sandoval, the same discovery process may have turned up the fact that Viacom employees were also caught uploading infringing materials. This then opens a whole new can of worms. If even Viacom can't determine what's infringing or what's legit, why should YouTube be expected to have that knowledge. On top of that, if YouTube saw that people at Viacom were uploading such content, then how was it possible for YouTube to have any idea that Viacom didn't want the same content uploaded by others? Finally, even if this does constitute "actual knowledge," wouldn't it then mean that the liability for YouTube was limited to the few files of which they had knowledge, rather than the wider spectrum of infringing content? Does knowledge of a single infringing content take away all safe harbors on the other content?

Suddenly, the lawsuit may have become a lot more interesting in that it may address some of those questions...

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Filed Under: actual knowledge, copyright, dmca, videos
Companies: google, viacom, youtube

37 Comments

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Dark Helmet (profile), 7 Oct 2009 @ 6:59am

Finally an article I largely disagree w/you about...
"When you're talking about a corporation, what constitutes "actual knowledge"?"

Well, I think the ACTUAL questions are what role did the YouTube employees play in the company and where did they upload the infringing content? Because if the answers to those questions are "content management" and "at their work terminal" then, Houston we have a problem. If the answers are "Bitchy receptionist" and "from her mobile device while she sat on the toilet at home avoiding her husband's lurid gaze" then not so much.

"Even if YouTube employees saw content that was uploaded in an unauthorized manner, were they then supposed to make a fair use determination as well?"

Well, I'm less up on the law than you, surely, but since fair use is considered an affirmative defense, wouldn't the answer to your queston be: No, they aren't supposed to make a Fair Use determination, they're supposed to take the damn content down and let the uploader assert their affirmative defense? I know that sucks, but I AM against infringing content after all, and the way it currently works is fair use is a defense.

"According to Sandoval, the same discovery process may have turned up the fact that Viacom employees were also caught uploading infringing materials. This then opens a whole new can of worms."

I like catching hypocrites as much as the next person, and it seems to me the same "Role" and "Where" questions should be asked of Viacom as well, but given that fair use is an affirmative defense and the way the law was written, I don't see what one has to do with the other. YouTube shouldn't be pointing to Viacom and saying, "but you're secretaries are doing it TOO!", they are a publicly traded company and they need to obey the law so long as that law exists (hopefully working to change it as well).

Interestingly, I think the "role" and "where" questions might play in opposites for Viacom's case, if they are indeed the rights holders to the supposedly infringing material. In THEIR case, the secretary uploading at home is infringing, but the content managers at work may not be if they're doing it with company permission. Odd world we live in.

"On top of that, if YouTube saw that people at Viacom were uploading such content, then how was it possible for YouTube to have any idea that Viacom didn't want the same content uploaded by others?"

That only works if it was the exact same content, I think.

"Finally, even if this does constitute "actual knowledge," wouldn't it then mean that the liability for YouTube was limited to the few files of which they had knowledge, rather than the wider spectrum of infringing content?"

Well, yes, it should be limited to what Viacom can prove, but it's indicative of a deeper issue: employee accountability. Why weren't there measures in place to key in and alert management to these emails discussing infringing content (assuming they weren't being sent/received BY management)? There are fairly simple ways to accomplish such monitoring: most Email/Message archivers will do this. Many appliance-based SPAM solutions will as well. You just string several keywords together and set the devices to alert you when the pop up. If they can alert you when social security numbers are being discussed, certainly you could configure them to alert you to these types of internal discussions.

And they should have, end of story.
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SteelWolf (profile), 7 Oct 2009 @ 7:11am

Here's a thought
How about this: any digital video can be uploaded to YouTube, any "damage" is minimal and any benefit is maximal, so leave well enough alone.

Seriously though, I'm so sick of this legal BS when the whole thing is so painfully irrelevant. Taking "infringing" content off of YouTube only inconveniences everybody on their way to getting the same content from somewhere else. You'd think after nearly a decade of this monoliths like Viacom would have figured it out.
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cc, 7 Oct 2009 @ 7:11am

But I thought YouTube only smoked pot...
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Dom, 7 Oct 2009 @ 7:12am

Re: Finally an article I largely disagree w/you about...
Mr Helmet... I want to live in your world.

when are you taking over?
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Dom, 7 Oct 2009 @ 7:19am

Re: Here's a thought
Unfortunately, while these massive companies fear the internet (as opposed to embracing it) and continue to listen to their mindless moronic "analysts" things will never change.

all of the information they are given is edited, faked, overstated to make it look really bad. as Mike and many many other people across the net have highlighted, artists, labels and pretty much most people involved in the entertainment industries benefit massively from so-called "infringing" content being put up on youtube, veoh etc.

I agree, the arguments and legal situations are becoming boring now. especially when its obvious that all the "infringing" content is FREE MARKETING for the copyright holders.
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Anonymous Coward, 7 Oct 2009 @ 7:30am

Re: Re: Here's a thought
Same answer as always: It should be up to the copyright holder to decide what happens with their work, not some 14 year old kid in mom's basement. If they want to put it online free, they should be allowed, and if they don't want to, that should be respected.

In the end it isn't about free speech, it's about respect, something that is sorely lacking in the world these days.
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Sean T Henry (profile), 7 Oct 2009 @ 7:46am

Re: Finally an article I largely disagree w/you about...
""On top of that, if YouTube saw that people at Viacom were uploading such content, then how was it possible for YouTube to have any idea that Viacom didn't want the same content uploaded by others?"

That only works if it was the exact same content, I think."

How is YouTube able to know if a user has or does not have the right to upload the video? Unless users are required to verify who they are, and ALL of the licensed distributors/parties are given and updated by the minute to YouTube then they are to assume the unloader is acting in good faith.
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Richard (profile), 7 Oct 2009 @ 7:47am

Can't be certain about US law but in the UK companies are generally not liable for the actions of their employees without a clear chain of command to a senior employee who can be identified as a "controlling mind".

So the actions of YouTube employees wouldn't matter unless they can be traced directly back to senior management. Otherwise Viacom could sue the individual employees involved but that is all.
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ChurchHatesTucker (profile), 7 Oct 2009 @ 7:51am

Re: Re: Re: Here's a thought
"Same answer as always: It should be up to the copyright holder to decide what happens with their work, not some 14 year old kid in mom's basement."

It's up to us (or our heavily-lobbied representatives) to determine what an appropriate copyright term is. And frankly, after seeing the abuse of that monopoly that goes on, I'm thinking in terms of minutes.
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Richard (profile), 7 Oct 2009 @ 8:01am

Re: Re: Re: Here's a thought
Same answer as always: It should be up to the copyright holder to decide what happens with their work, not some 14 year old kid in mom's basement. If they want to put it online free, they should be allowed, and if they don't want to, that should be respected.

Unless of course the copyright holder is a 14 year old kid in Mom's basement and the infringer is a major corporation.

The point is that the major corporations that hold most copyrights don't respect the public.

They extended copyright terms all over the world by lobbying (and in some cases corruption) - shamelessly stealing from the public. The amount of copyright theft involved here exceeds anything that the public has done.

When someone else owns a copyright they ignore it. See

http://www.techdirt.com/articles/20091005/0146316418.shtml

When someone else licenses software - as in the GPL'ed s/w in the Sony rootkit they ignore the license and then dismiss it as "just a few lines of code". (Ignoring the thousands of copies of it that they made.)

They fire off accusations of infringement without proper checking and cause innocent people a lot of hassle.

Frankly major copyright holders should start showing some respect themselves before they expect anyone to respect them.

A token of goodwill here would be to release to the public domain all those works whose copyright would by now have expired had the terms not been extended.

I'm not holding my breath!
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Dark Helmet (profile), 7 Oct 2009 @ 8:02am

Re: Re: Finally an article I largely disagree w/you about...
"How is YouTube able to know if a user has or does not have the right to upload the video?"

There not supposed to know. They're not even supposed to think about it, they're just supposed to take it down under the assumption that if Fair Use can be applied, it will be and that the number of people applying the fair use affirmative defense will be far smaller than the number of people who are either truly infringing or else don't care enough to fight for Fair Use.

This is why in large numbers, I think the auto-takedown policy MIGHT, and only MIGHT be the best workable solution. YouTube has too much content being uploaded to police themselves, so they shouldn't, they should summarily dismiss reported infringing material. After all, while YouTube may not have the employee numbers to sift through all the uploaded cotent, each uploader DOES have the ability to review THEIR OWN content, and can apply Fair Use back to YouTube when applicable. The numbers of people doing so ought to be enough less than total content for YouTube to have a fair shot of managing with their current employee numbers.

It's a dirty solution, not perfect, and I feel like I have to wash my hands after suggesting it, but if coupled with severe punishments for those making false claims of infringement (which should be immediately introduced), it might be the best workable option.

...wait second...did I just advocate something other than an ultimatum? HEY!!!! Who's putting these roofies in my goddam coffee????!!
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John Fenderson (profile), 7 Oct 2009 @ 8:10am

Re: Re: Re: Here's a thought
Once again, that's a straw man. Nobody's saying what you're implying that they're saying.

"In the end it isn't about free speech, it's about respect, something that is sorely lacking in the world these days."

And the surest way to gain respect is to enact draconian legislation and beat people over the head with it. That's far more effective than behaving in a respectable manner.
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Chronno S. Trigger (profile), 7 Oct 2009 @ 8:13am

Re: Re: Re: Finally an article I largely disagree w/you about...
So, you're advocating that all content that may be infringing be taken down no matter who uploaded it?
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TheStupidOne, 7 Oct 2009 @ 8:14am

Re: Finally an article I largely disagree w/you about...
As far as I understand the law, youtube is obligated to take down content when it receives a takedown notice. Knowing that content was uploaded that is 'infringing' doesn't matter because many content owners either don't care about it, or actually want the content to remain in place. So until a takedown notice is filed the content can stay up.

As for youtube employees uploading infringing content, that is a bit different. An employee is liable for their individual illegal actions, the company is liable if it is part of the duties of said employee. In either case the company will be sued and likely lose if the activity was performed on company property.
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taoareyou (profile), 7 Oct 2009 @ 8:14am

Auto Takedown
If there is ever an automatic takedown feature, you can be pretty sure that it won't take long for every vid on YouTube to go down and there will not be enough YouTube employees to review them all.
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Dark Helmet (profile), 7 Oct 2009 @ 8:22am

Re: Re: Re: Re: Finally an article I largely disagree w/you about...
"So, you're advocating that all content that may be infringing be taken down no matter who uploaded it?"

Well, right off the bat there's a logic fail in your statement, because if the rights holder did the uploading, it isn't infringing. But, yes, I think if you couple over the top stiff penalties for falsely claiming copyright infringement to sites like YouTube, the current practice of taking down material claimed to be infringing and then allowing the uploader to assert their rights and/or Fair Use defense to get it back up MIGHT be the most workable option that follows current law.

On the other hand, I'd rather see most of the copyright law rewritten, but that might be a long time in coming.
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Anonymous Coward, 7 Oct 2009 @ 8:47am

Re: Finally an article I largely disagree w/you about...
How do you continue to be funny.
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Dom, 7 Oct 2009 @ 8:51am

Re: Re: Re: Here's a thought
"In the end it isn't about free speech, it's about respect, something that is sorely lacking in the world these days."

right and wheres the respect in shafting users who are effectively promoting the copyright holders work.

you are correct, there is a severe lack of respect in the world but i think you forget that respect tends to be a 2 way thing and until we as users find ourselves being respected by the major copyright holders, we're never going to respect them.
if you look at this the way any sane person would... we get charged too much for what we buy... we get p*ss poor advertising thrust in our faces all day every day... we get threatend with lawsuits for sharing files WE BOUGHT. as a consequence we take it upon ourselves to avoid being brainwashed, sued, bankrupted and share things with one another in ways we now can thanks to the wonders within the net.

im not promoting filesharing, illegal downloading etc. it just seems a little hypocritical for someone to say "respect the copyright holders" when there is no respect FROM the copyright holders.
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Dark Helmet (profile), 7 Oct 2009 @ 9:10am

Re: Re: Finally an article I largely disagree w/you about...
"Mr Helmet... I want to live in your world.

when are you taking over?"

The time is Nye. And no, that isn't a typo. My predetermined time and date for takeover is an instant I have lovingly named after the greatest analytical mind of our time: Bill Nye the Science Guy.

He will be my Secretary of Stem Cell Research, mostly because I think watching him explain to people in that goofy way of his what all of that genetic material that he spilled on his labcoat (which he'd be required to wear at all times, even to bed) would be a great deal of fun.

Really, all of my cabinet position appointees are going to be, shall we say, special. I think a Bruce Campbell, Secretary of Kicking Ass and Chewing Gum would also work nicely...
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Dom, 7 Oct 2009 @ 9:18am

Re: Re: Re: Finally an article I largely disagree w/you about...
I look forward to your superior leadership with great impatience...
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Anonymous Coward, 7 Oct 2009 @ 9:20am

Re: Re: Re: Here's a thought
Same answer as always: I should be making money. Some 14 year old kid in mom's basement should pay me for my work. You shouldn't put it online free, that shouldn't be allowed. I want money and that should be respected.

In the end it isn't about free speech, it's about respecting my desire for money, something that is sorely lacking in the world these days.
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Anonymous Coward, 7 Oct 2009 @ 9:23am

Re: Re: Re: Re: Here's a thought
Same money as always: I should be making money. Some 14 year old kid in mom's money should pay me for my money. You shouldn't put it online money, that shouldn't be allowed. I want money and that should be money.

In the end it isn't about free speech, it's about respecting my money for money, something that is sorely lacking in the money these days.
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Anonymous Coward, 7 Oct 2009 @ 9:26am

Re: Re: Re: Re: Re: Here's a thought
Same money as money: I should be making money. Some 14 year old money in mom's money should pay me for my money. You shouldn't put it online money, that shouldn't be money. I want money and money should be money.

In the end it isn't about free money, it's about respecting my money for money, something that is sorely lacking in the money these money.
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Anonymous Coward, 7 Oct 2009 @ 9:30am

Re: Re: Re: Re: Re: Re: Here's a thought
Same money as money: I should be money money. Some 14 money old money in mom's money should pay money for my money. You shouldn't put money online money, that shouldn't be money. I want money and money money be money.

In the money it isn't about free money, it's about money my money for money, something money is sorely money in the money these money.
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Anonymous Coward, 7 Oct 2009 @ 9:35am

Re: Re: Re: Re: Re: Re: Re: Here's a thought
Money money money money: money money money money money. money money money money money money money money money money money money money money. money money money money money money, money money money money. I want money money money money money money.

Money money money money money money money money, money money money my money money money, money money money money money money money money money money.
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AC's long lost brother, 7 Oct 2009 @ 9:45am

Re: Re: Re: Finally an article I largely disagree w/you about...
And Jeffrey Donovan and Richard Dean Anderson Co-Secretaries of Pithy Remarks and Novel Uses for Everyday Objects.
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Anonymous Coward, 7 Oct 2009 @ 10:14am

Re: Re: Re: Re: Re: Finally an article I largely disagree w/you about...
Why not just have YouTube build a form that is sent to the uploader when a challenge is issued, leave the content online and then if there is no response take the content down in say 10 days. If the uploader responds within the 10 days and gives the Fair Use defense (should just be a check box with a text box to explain how it is their content and a place to upload a certificate or some other way to authenticate it).

Then the automated system alerts the appropriate employees and sends a form to the person claiming infringement to be filled out and then it is all up to lawyers from there.
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Dark Helmet (profile), 7 Oct 2009 @ 10:30am

Re: Re: Re: Re: Re: Re: Finally an article I largely disagree w/you about...
I actually REALLY like that idea, though I dare say 10 days is a little lengthy a time frame. Two or three ought to do fine. Remember, in most cases this isn't large unwieldly government or corporate responses you're going to get, but individuals.
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Rose M. Welch (profile), 7 Oct 2009 @ 10:37am

Re: Re: Re: Finally an article I largely disagree w/you about...
Yes.
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Hypocrites, 7 Oct 2009 @ 11:07am

Re: Finally an article I largely disagree w/you about...
Dark Helmet...your avatar is infringing.
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Dark Helmet (profile), 7 Oct 2009 @ 11:38am

Re: Re: Finally an article I largely disagree w/you about...
Interesting. The site I got it from indicated that the image was free from restrictions. That could have been incorrect, of course, but as far as I know, I'm in good shape.

However, I suppose I could change the avatar image to something user-generated rather than a screenshot if that'd REALLY make you happy. Probably a funny one out there, too...
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Anonymous Coward, 7 Oct 2009 @ 1:07pm

Re: Re: Re: Re: Re: Re: Re: Finally an article I largely disagree w/you about...
I use burn accounts that I rarely check for stuff like youtube. So 10 days seems about right for me.

The goal is to keep the content online and give the person that is making the claim the time to substantiate their claim... mainly because the burden of proof is on them, not the person that uploaded the content.
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Anonymous Coward, 7 Oct 2009 @ 1:14pm

Re: Re: Re: Finally an article I largely disagree w/you about...
I think he said it as a joke.
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Griff (profile), 7 Oct 2009 @ 1:30pm

Proof of ownership ?
Suppose artist A sees his work (and I'm assuming it IS his, not some record label's) has been uploaded to YT by fan B
But he decides that in fact that is cool and sits back to see how many people view it.

Some other "do gooder" (C) writes to YT stating (correctly) that the work is infringing (even though artist A doesn't actually mind), and demands takedown.

Does C have to prove his credentials to YT before they move to takedown ? Will YT refuse, saying "you're not A" ?

Or will YT let anyone request anything be taken down ?
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Dark Helmet (profile), 7 Oct 2009 @ 1:49pm

Re: Re: Re: Re: Finally an article I largely disagree w/you about...
He may have, but I truly do HATE hypocrisy, so no reason not to be safe. This latest avatar is supposedly given away w/o need to secure rights from a site that teaches drawing (best as I could tell, they WANT you to copy/download the image along w/the step by step images in order to learn to draw the image and compare to your own).

I love Mel Brooks too much to risk trodding on his golden property.

FYI, he will be my Secretary of Funny, even after he dies. His undersecretaries will include: Lewis Black, Dennis Leary, John Stewart, Dave Chapelle, and Sarah Palin, because all of them have done so much to bring laughter to our nation...
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ChurchHatesTucker (profile), 8 Oct 2009 @ 10:32am

Re: Re: Re: Re: Re: Re: Re: Re: Here's a thought
The O'Jays would like a word with you, sir.

http://www.youtube.com/watch?v=9O8gTib5rnw
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Anonymous Coward, 9 Oct 2009 @ 4:52pm

I just hope that something as useful and beneficial to society as youtube (and google) doesn't get taken down due to something as useless (and harmful) to society as intellectual property. If it does this would just be more damage caused by intellectual property and more reason to eliminate intellectual property laws.
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