Viacom Didn't Actually 'Win' Against YouTube, But The Appeals Court Ruling Is Still Dangerous
from the a-mixed-bag dept
We already covered the 2nd Circuit's ruling in the appeal of the Viacom/YouTube case, but I wanted to follow up after seeing much of the coverage. There have been a number of reports that outright declare this a "victory" for Viacom, which is a very generous reading of the ruling. To be sure, the appeals court reinstates the case that had been effectively shut down by the district court -- but it did so in a manner that rejected every single one of Viacom's interpretations of the law. The biggest concern in this lawsuit was that Viacom would be able to use it to effectively reinterpret the DMCA the way it wanted the law to act, rather than the way the law was actually written (and which the case law has supported for years). The court clearly rejected that attempt by Viacom.But, of course, it wasn't a complete vindication for YouTube. Reviving the lawsuit is clearly a partial step backwards for YouTube, but it's entirely possible that they could still prevail in the district court on the specific points that were sent back for trial. And, in the details of why the appeals court revived the case are some significant problems, many of which are outlined in a thorough post by Eric Goldman. I don't agree that the ruling is quite as significant as Goldman does, but he does make some good points about problems with the setup of the DMCA's safe harbor and (equally troubling) the way the court ruled on a few key points that make little sense.
On the setup of the DMCA, Goldman notes that the real issue here is that the DMCA safe harbors have a bunch of different confusingly worded parts -- and to keep the safe harbors, you need to hit on every point, which is kind of ridiculous when you think about it:
Most importantly, this opinion exposes a structural deficiency of the 512(c) safe harbor. The statute's simply too long and detailed, and if a defendant fails to satisfy each and every element, the safe harbor is lost completely. This is reminiscent of military strategy and information security: the defense has to work equally well across its entire border, while the adversary can concentrate its attack and only has to succeed on one point of attack to win. The same is true with a 512(c) defense. So, it doesn't matter that YouTube won most of the points of contention; if any single point of contention fails, YouTube's 512(c) defense fails. As I've insisted before, this provides a good lesson for drafters of safe harbors and immunities--to work effectively, the safe harbors/immunities must be pithy and categorical, or else they create too many potential points of failure.This is a really good point, and suggests that if the DMCA is to be fixed, the safe harbor provisions should be clearer that missing a single checkbox doesn't mean you automatically lose all safe harbors.
The second concern is how the court interpreted parts of the DMCA where it's been sent back to the lower court. As Goldman notes, the 2nd Circuit's decision to totally punt on "right and ability to control" is going to create a huge mess for a while, in which we can expect copyright holders to flood the 2nd Circuit with cases focusing on that point -- since the appeals court simply rejects the standards put forth by YouTube (which used an interpretation already accepted in the 9th Circuit) and Viacom (which used an interpretation that only made sense in the minds of Viacom execs) but fails to come up with its own standard. Meaning no one knows what the standard is... and that means that copyright holders have a chance to get the court to redefine it in their favor:
So the court agrees with no one. Given that it rejected everyone else's definitions, we might expect the court to carefully lay out what it thinks the phrase means. Sadly, no. The opinion doesn't provide an express definition of what qualifies as the "right and ability to control," instead sending that issue back to the district court to figure out both the standard and whether YouTube met it. The clearest clue the court provides about the standard is it "involve[s] a service provider exerting substantial influence on the activities of users, without necessarily—or even frequently—acquiring knowledge of specific infringing activity." I have no idea what that means, other than that it's open season for plaintiff fiestas.The fact that this will likely open up an opportunity for new lawsuits could be a pain for innovative companies who will face a new series of bogus legal attacks. Elsewhere, Goldman warns that the end result of this ruling will mean that startups that work with user generated comments are going to have to lawyer up at an earlier stage, and may have to take extra precautions which don't appear to be supported in law, just to avoid lawsuits.
In the end, the ruling is certainly not a "victory" for Viacom, but it does have significant problems. The district court could fix some of the problems by establishing that YouTube still gets safe harbors, even after the court's vague and directionless remand, but if that fails, perhaps this case and its differences from existing 9th Circuit case law would end up in the Supreme Court. That, of course, is risky, since the Supreme Court has been so consistently clueless when it comes to copyright cases.
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Filed Under: dmca, eric goldman, safe harbors
Companies: viacom, youtube
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"That, of course, is risky, since the Supreme Court has been so consistently clueless when it comes to copyright cases."
Have you ever considered the possibility that maybe YOU don't know as much as you think you do? Maybe YOUR interpretation of copyright law is WRONG. I know it sounds crazy to think that a group of appointed legal experts who were scrutinized by congress could possibly know more than the almighty Mike Masnick, but maybe, just maybe it's possible.
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It's possible but do you have any evidence for it?
Since you don't quote any I guess that you don't have any.
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Oh wait....
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Didn't your president state the other day that SCOTUS would never do anything wrong and would always abide by the laws set by congress and senate.
Oh wait....
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Appeal to Authority fallacy
Yes, Biff - you are allowed to disagree with supreme court rulings, they will not throw you in jail for that ... yet.
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looks like a victory to me
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Re: looks like a victory to me
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Re: Re: looks like a victory to me
and this is key, you act like this is a bad thing. Why do IP extremists think this is a bad thing? because it allows independent artists to get their content distributed without going through government established monopolist gatekeepers. and that's what you and IP extremists and government established monopolists don't want. This isn't just about stopping infringement, this is about stopping competition altogether. Just like what has been accomplished outside the Internet thanks to broken laws (ie: government established broadcasting and cableco monopolies and laws with a one sided penalty structure that deter restaurants and other venues from hosting independent performers without paying a parasite third party fees in fear of getting sued and laws that even prevent bakeries from allowing children to put custom drawings on their birthday cakes). What you want is to make money by harming and scamming both the artists and the public. This is hardly about compensating artists, it's about making sure they sign their IP privileges away if they want their content distributed so that they receive much less compensation for their works.
"I'll bet Google will rethink search engine delisting ... With all of those players at the table it's hard to any stopping it."
and, of course, by parties you mean industry interests, not the public interest.
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Re: Re: Re: Re: looks like a victory to me
and most of the content they distribute, the overwhelming majority, is non-infringing. Maybe a very very small percentage maybe infringing until they take it down.
"Yet most seem interested in distributing studio/label content."
When they distribute it, they generally do it with permission. The claim that they are interested in distributing infringing content (ie: without permission) is a lie. They make most, almost all, of their money from non-infringing content, and if anything, policing infringement probably costs them far more than what they allegedly make from infringing content.
and corporations aren't guilty until proven innocent. They are innocent until proven guilty. So if you want to make up such bold accusations I expect substantiation. IOW, citation needed.
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If Viacom wins this, how much of that money do you suppose will go to actual artists?
It's perfectly fine for Hollywood to rip off artists with their Hollywood accounting practices I suppose.
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what you're missing
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To be fair, Google and service providers want laws that don't require them to police IP at all and that enables them to win all of their cases. They're self interested too, just like Viacom, though I tend to side against IP extremists and in favor of free market capitalism instead.
But to say that this is all Viacom wanted is silly. Viacom wants profits, that's pretty much all they want, they are a for profit entity and they want to be able to file any frivolous lawsuit they want and win huge damages without receiving any public backlash whatsoever.
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Re: Re: Re: what you're missing
YOu have to remember that a key component of the safe harbors original was 512 (C) 1 (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; "
This has been watered down and essentially ignored by the courts. What Youtube does is pretty specifically these acts, which is to say that they profit from the infringing material - by republishing it on their web pages, indexing it, sorting it, and placing matching advertising with it.
The issue of allowing third party sites to embed is the only area that this piece of the law is being applied to at this point, and that hasn't been decided.
Don't be shocked to see the lawmakers step in after this ruling and tighten the safe harbors up to make it much harder for "user content" sites to operate legally.
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An alternative is for them not to. How is there no alternative, what will happen if they don't, will they lose campaign contributions? Will it harm how much they benefit from the revolving door? What exactly are the consequences if they don't?
"in a case in which the service provider has the right and ability to control such activity; "
and the point is that in some cases it is almost impossible, they are practically unable to, control such activity.
"What Youtube does is pretty specifically these acts, which is to say that they profit from the infringing material"
This is ludicrous. They and other service providers substantially make most of their money from non-infringing materials. The cost of administering DMCA takedowns, hiring people to evaluate and take content down and to resolve disputes between those who upload and those who claim infringement, and litigating this nonsense probably far outweighs whatever tiny fraction of revenue they allegedly get from infringement. Labor is not cheap. Do you have any evidence that they profit from infringing material, or is thus just a faith based unsubstantiated assertion that we should take for granted.
"Don't be shocked to see the lawmakers step in after this ruling and tighten the safe harbors up to make it much harder for "user content" sites to operate legally."
You say this like it's a good thing. You truly have no regard for morality and only care about yourself, no matter what the cost to others.
Your quote is a good reason to simply abolish IP. As you even seem to admit, you want rulings and/or laws that ban competing content distributors. This isn't just about stopping piracy, it's about stopping user generated content. You don't want competition, period. and outside of the Internet this is what government established monopolists have accomplished. It's very sad and unacceptable. It harms artists and the public and only benefits the government established monopolists. That you would seem to encourage this nonsense shows how selfish you are.
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The failure to address the issue is pretty much an acceptance of copyright violation as a business model, and the tossing out of pretty much all artist and creator rights as a result. Considering the that US is more and more becoming an IP and service oriented economy, it's hard to justify ignoring something that is effectively killing off the commercial aspects of content.
"As you even seem to admit, you want rulings and/or laws that ban competing content distributors. "
Where did you get that? All I want is for all players to play on the same level playing field. It's an incredibly unfair advantage for YouTube to be able to operate using everyone else's content without having to pay for it's creation, and when caught, can just say "oops" and take it down - and STILL not pay for the time they used it.
I am all for the level playing field. Youtube can run content they know they have the right to, and they can refuse the stuff they don't have the rights to. It's a pretty simple concept, really.
I know, probably still too complicated for you, but it really is a simple concept.
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There is no issue to address. These service providers substantially remove infringing content from their servers. Is it absolutely perfect? No, some infringing content still temporarily gets on their servers, later to be removed, but that's no excuse to make it substantially more expensive for these services to operate legally and to destroy everyone's lives in the process by making it more difficult for everyone to get their user generated content distributed. Which is what you admittedly want.
"Considering the that US is more and more becoming an IP and service oriented economy, it's hard to justify ignoring something that is effectively killing off the commercial aspects of content."
Yet you want to kill off service providers by making it more expensive and difficult for them to operate legally.
and an economy based on IP lawyers suing each other over infringement is not an economy. It doesn't produce anything useful. It's the lack of an economy. IP monopolies don't contribute anything to the economy, they do nothing to increase AGP, they simply hinder innovation and the manufacturing of goods, which is what monopolies do. It's partly why the U.S. is no longer an innovative economy that creates anything, because IP laws keep getting in the way of everything and so everyone else is advancing past us and your response is that we should protect IP laws because we are an IP based economy. Which is silly, IP privileges don't contribute to the economy.
"and the tossing out of pretty much all artist and creator rights as a result."
Making it more difficult for service providers to operates tosses out the rights of artists to more easily get their content distributed. This harms artists far more than IP abolition could. It reduces aggregate output (content creation being a form of aggregate output). No one is fooled into thinking that your intent is to defend artists. No, it's to defend incumbent middlemen monopolist distributors.
An economy that pushes worthless paper and IP privileges around isn't an economy, one that increases aggregate output is. Trying to better monetize less content being created harms the economy.
"Where did you get that?"
Because you want
"to make it much harder for "user content" sites to operate legally"
This is an unacceptable outcome. I would sooner see copy protection privileges abolished than to see this as an outcome. It hurts consumers and artists alike and the only people it benefits are selfish people like yourself. For you to make a comment like this, as if it's a good thing, really shows how selfish you are.
What you mean by making all players play on the same playing field is to make it much harder and more expensive for user content sites to operate legally, which harms both users and artists. This isn't about the artists, it's about you.
"Youtube can run content they know they have the right to, and they can refuse the stuff they don't have the rights to."
They already refuse stuff they don't have privileges to. They take it down. What you want is to make it more expensive for people to put user generated content online because that content competes with big media content that you benefit from. You want people to go through an expensive, complicated, and time consuming bureaucratic process to get their content distributed.
"I know, probably still too complicated for you, but it really is a simple concept."
If service providers must only run content that they know they can legally run ahead of time then that will substantially limit how much content they can run. They have to hire people review every instance that someone wants to upload content ahead of time and then they have to hire psychics to determine if the content is infringing because copy protection is opt out, there is no central database to look up what content is infringing, and so there is no practical way to tell what content is infringing. That's expensive and impossible. Days of content are uploaded every minute, how exactly is Youtube supposed to practically police all of this content ahead of time? If it's so simple, then pray tell. How exactly are they going to do this? and even if they can watch all of this content in real time, how are they supposed to magically know what constitutes infringing material?
I agree, it is simple. You are selfish and want to make things more expensive for service providers for no good reason. You even admit it. IP enforcement is not a good reason. You want to make it practically impossible for the overwhelming majority of people to get most of their perfectly legal content distributed by requiring someone to review every bit of content before it gets posted and then to magically decipher infringing content from non-infringing content without requiring IP holders to provide any reference points whatsoever to help service providers make these determinations. All of the burden is placed on everyone else to police content and decipher infringing content from non-infringing content and yet IP privilege holders are expected to hold absolutely none of the burden of administering their own privileges and providing a way for service providers to decipher infringing content from non-infringing content whatsoever. and this is expected, IP extremists are lazy. They don't create content and they don't innovate, they contribute nothing, instead they make money off of others who do.
"I am all for the level playing field."
Me too, which is why I think we should abolish government established cableco and broadcasting monopolies. It's also why I think we should make the IP penalty structure less one sided. That way the government established monopolists will stop playing on an unlevel playing field that gives them an unfair, government established, advantage to distribute content. That way restaurants and other venues can host independent performers without fear of expensive lawsuits for not paying some parasite third party a fee. That way bakeries can allow children to draw custom drawings on their birthday cakes without fearing being sued. Yes, I'm all for a level playing field. What you want is to further unlevel the playing field for those who want their content distributed by making it more expensive and difficult for service providers to operate legally. Just like the laws make it more difficult and expensive for independents who don't sign their copy privileges away to distribute their content legally outside of the Internet. You truly are selfish.
"It's an incredibly unfair advantage for YouTube to be able to operate using everyone else's content without having to pay for it's creation, and when caught, can just say "oops" and take it down - and STILL not pay for the time they used it."
Which is not what Youtube is doing. The overwhelming majority of what Youtube hosts is authorized and non-infringing. The money they allegedly make on infringing content is not how they operate (if anything, as pointed out, the cost of administering and resolving takedown disputes probably far outweighs any alleged benefits they get from infringing content), they operate on the non-infringing content. To say otherwise shows how desperate you are to remove artists rights to easily get their content distributed without going through a monopolist gatekeeper and signing their IP privileges away, losing rights to freely distribute their own content and have that content be shared by others. It shows how desperate you are to kill user generated content sites because you don't like competition. Is the system perfect? Does it immediately stop all infringement? No, but only because that's too impractical. But that's no reason to substantially increase the costs to service providers and make it much more difficult and expensive for users to get their content distributed. That you suggest such an outcome is a good thing really does show how selfish you are. I would sooner see IP laws abolished.
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If you want IP privileges, you should carry at least some of the burden that they impose on society. You shouldn't require everyone else undergo all of the burden without you undergoing any of it. That truly is selfish.
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The overwhelming majority of uploaded content is non-infringing and days of content are uploaded every minute. It's prohibitively expensive for service providers to hire someone to manually watch and review all of the content and then to magically determine which parts of that content are infringing before posting it. But that's what admittedly you want. Which will necessarily prevent the overwhelming majority of that (perfectly legal) content from being uploaded by making it too expensive for most users to get most of their content uploaded and reviewed. All of the (perfectly legal) content that doesn't get uploaded as a result hurts the creators and uploaders of that content and it hurts all of those people who would otherwise view that content. But, again, this is what you admittedly want. You truly are selfish. Your very own words express your selfishness, you don't even do a good job hiding it with what you say. You make for a terrible PR person.
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