Copyright Talk

With more large media companies lining up across the table from YouTube and it’s parent company Google everyday, see the latest entries here, I thought it might be worth while to review what this lawsuit is about, and what is potentially at stake.

The Digital Millenium Copyright Act (DMCA), enacted in 1998, was designed to address many questions that arose with the computer age. One provision, known as the Safe Harbor, specifically lets internet service providers (ISP) - the companies that host websites - avoid charges of copyright infringement related to material posted on a website hosted by their company. In order to invoke this safe harbor, the ISP must have certain policies, including a procedure for removing material once they are notified that it is an infringement, and they must also have a kind of innocent bystander aura. In other words, the ISP can’t know about the existence of the infringement and merely wait until someone complains. At least, that is one interpretation of the Safe Harbor.

The Safe Harbor was an acknowledgment that the role of a web hosting company did not include direct participation in the individual websites or the content on those sites, making it different than the traditional, pre-millennium, publishing model, where editors had a hands on connection to the content they published. ZDNet has an excellent article on the history of the law as it relates to YouTube.

YouTube/Google relies on this Safe Harbor to defend claims of infringement by the big media companies. The individual posters, on the other hand, do not have a safe harbor other than a legitimate fair use defense for posting copyrighted material without permission. The Big Companies, however, would rather make YouTube/Google liable than go after potentially hundreds of thousands of individuals on an ongoing basis. The argument of the copyright owners is that if YouTube has knowledge that it’s site is being used for copyright infringement on a large scale basis, then it is participating in the infringement by letting it continue. YouTube argues that by having a policy prohibiting the posting of copyrighted material without permission, and by promptly removing infringing material as soon as it is notified, it has met it’s burden under the Safe Harbor.

Let’s see what the courts say.