German Court Decides That YouTube Is Liable For Copyright Infringement

April 23, 2012 by · Comments Off
Filed under: Announcements & Events, Entertainment Industry, File-Sharing Programs, Networks & Services, Legal P2P News & Issues 

A court in Germany has decided that YouTube is liable for copyright infringement when its users post videos that are subject to copyright laws. On top of the existing ContentID systems, the court in Hamburg requires from YouTube to install additional keyword-based filters to detect when copyrighted material is uploaded.

The battle between YouTube and GEMA (Gesellschaft für musikalische Aufführungs und mechanische Vervielfältigungsrechte) – Germany’s music rights group – started to heat up in 2010. An earlier agreement with GEMA – representing around 60,000 artists – had expired in 2009.

Instead of accepting a negotiation settlement forwarded by YouTube, GEMA filed suit on copyright grounds against the world’s most popular video website. The action involves 12 specific music videos uploaded by YouTube users. According to GEMA’s claims, YouTube’s efforts to monitor submitted content are not enough.

Today a court in Hamburg ruled that YouTube is directly responsible for the material posted by its users, despite the fact that the website is having the latest filters to block infringing content.

Presiding Judge Heiner Steeneck said that his decision is a victory for both sides. GEMA wanted YouTube to take responsibility for videos posted in the past, and those that will be uploaded from now on, but that was denied.
“YouTube isn’t the perpetrator here, it’s those people who illegally upload songs,” Steeneck said.

“That’s why YouTube doesn’t have to search all videos uploaded in the past. It only has to help detect videos from the moment it is alerted about possible violations.”

Currently YouTube is running the “ContentID” anti-piracy system which detects infringements by way of digital fingerprints, but the court ruled that in isolation that is not enough. As such, YouTube must filter by keywords too.
Both sides are to announce whether they will appeal the decision or not.

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Hotfile Smashes MPAA’s Interpretation Of YouTube Ruling

April 19, 2012 by · Comments Off
Filed under: Announcements & Events, File-Sharing Programs, Networks & Services, Legal P2P News & Issues 

No more than two weeks ago the Second Circuit Court of Appeals made an important decision in the lawsuit involving Viacom and Google, regarding massive copyright infringement on the YouTube network. The lawsuit was revived – a victory for Viacom – but what is important now is how future litigants and judges will interpret the ruling.

Not long after the ruling copyright holders and their legal targets heated up on the meaning of what the appellate circuit said in the ruling. Last week, in the middle of MPAA’s battle with Hotfile, the first expressed its own opinion. In response, Hotfile’s attorneys said that the plaintiffs were trying to put a “brave face” on what was said at the Second Circuit.

“If the Second Circuit provided any sign-posts for how copyright law is to be interpreted going forward, one would hardly know it from court filings last week in the Hotfile case,” says a Hollywoodreporter article.

At the moment Hollywood studios are pushing for a summary judgment against Hotfile, calling it more egregious” than Napster, Grokster and Limewire and “indistinguishable” from Megaupload.

In a notice of supplemental authority on Wednesday, the MPAA wanted to draw the attention of a Florida federal judge on the Second Circuit ruling regarding Youtube’s case, making four key points.

“First, the Second Circuit held that service providers can obtain knowledge of infringement that disqualifies them from DMCA safe harbor by being willfully blind to infringement.”

The appellate circuit broadly accepted Google’s interpretation of what safe harbor means. It didn’t accept, however, Viacom’s interpretation of “red flags”, but said that further proof is needed to establish if YouTube knowingly looked away, pointing out to a survey that estimated 75% to 80% or YouTube’s content contains copyrighted material. MPAA considers this is a victory, saying that the Second Circuit determined that while service providers have no freestanding duty to monitor for infringing material, a service provider can be found willfully blind where it was aware of a high probability of the fact in dispute and consciously avoided confirming that fact.”

In addition, the plaintiffs added: “In these circumstances, as the Second Circuit observed, willful blindness ‘may be applied … to demonstrate knowledge or awareness of specific instances of infringement under the DMCA.”

“Second, the Second Circuit emphasized that Grokster inducement liability is based on ‘purposeful, culpable expression and conduct’ and reaffirmed that such conduct was inconsistent with DMCA safe harbor protection…,” continued the MPAA.

“Third, the Second Circuit rejected defendants’ argument that the higher DMCA standard for ‘ability to control” should apply to common law vicarious infringement as well. In ruling that the DMCA ‘requires something more than the ability to remove or block access to materials posted on a service provider’s website,’…the Second Circuit confirmed that ‘[u]nder the common law vicarious liability standard, [t]he ability to block infringers’ access to a particular environment for any reason whatsoever is evidence of the right and ability to supervise.”

In their ruling, the Second Circuit did not accept Google’s interpretation of copyright law that the “ability to control only pertained to specific knowledge of infringements”. In addition, the Second Circuit disregarded Viacom’s conflation of vicarious liability standards on this topic, saying “something more” was needed.

“Finally, contrary to defendants’ arguments, the Second Circuit reaffirmed that service providers can obtain knowledge of infringing activity that disqualifies them from DMCA safe harbor from sources other than copyright owner takedown notices,” reads MPAA’s final point.

The group added: “Indeed, even in finding that service providers must have knowledge of specific infringing activity to be disqualified from safe harbor under § 512(c)(1)(A), the Second Circuit made clear that the test is an objective one: whether from the facts and circumstances known to the service provider, specific infringing activity would have been apparent to a reasonable person.”

Hotfile, on the other hand, has a different interpretation, claiming that plaintiffs have submitted a filing which “badly distorts the important aspects of the YouTube decision.”

The company’s lawyers say that the Second Circuit rejected the position that “generalized knowledge of infringement on a website suffices to deprive a defendant of safe harbor protection under the DMCA” and that “that disqualifying knowledge or awareness can be proved through statistics.”

As for YouTube “blindness”, Hotfile agrees, but only to specific instances of infringement. Furthermore, regarding the issue of “right and ability to control” Hotfile said that the MPAA has engaged in a “tortured reading” to find support for the idea that DMCA’s safe harbors do not apply to those who possibly maintain inducement liability, and that the group is trying to “camouflage” the fact that the Second Circuit disagreed with them on the “right and ability to control” provision of the DMCA.

“Essentially, when adding up the respective parties’ interpretations of the YouTube decision, the Second Circuit ruling has become a Rorschach inkblot test. The parties each read elements within the decision to support their respective causes. That fact isn’t surprising, but what’s remarkable is how little clarity there is in what the judges at the appellate circuit had to say. The state of disagreement about copyright law is pretty much exactly the same as before. Unfortunately, judges don’t sit immediately for follow-up questions,” concludes Eriq Gardner of the Hollywoodreporter.

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How Multinational Companies Monetize Public Domain Content Claiming They Own It

December 13, 2011 by · Comments Off
Filed under: Announcements & Events, Entertainment Industry, Legal P2P News & Issues 

Here we go again diving into the copyright issue where names like Google, YouTube, FedFlix swim in waters that we, the public, (or how most of the media giants would have us think, simply consumers)usually, quickly drown.

To the rights owners, so hard to please these days, Google already showed ‘hospitality’ by introducing “ContentID”, a service developed to protect copyright owners by allowing them to upload to YouTube copies of the content they own the rights, a sort of a signature as the proprietors of the respective works; YouTube then finds videos or audio that seem related to those copyrighted works.

Next is the rights holders’ move – they can either send a request to Google to automatically remove the infringing videos or they can choose to “monetize” the video by asking Google to display ads every time it gets played back this way generating profit for the rights holders’ pockets. When Google finds content that appears to be copyright protected, it notifies the uploaders that their videos are subject of a copyright match and gives them the chance to file a contestation.

The problem is that ContentID is not exactly legal itself as it exceeds the boundaries and requirements related to copyright. YouTube and similar services are in fact ensured a “safe harbor” provision under the US Digital Millennium Copyright Act of 1998 which puts them out of reach in terms of liability for copyright infringement.

The duty of the services that benefit from this provision, in return, is to respond promptly to notices of copyright infringement sent by copyright owners by removing the infringing content. However, the main aspect here is that under current law YouTube is not obligated to proactively search for videos infringing copyright and remove them.

To make this clear to everyone – ContentID is not a service YouTube is legally bound to operate; it just shows the power of the entertainment industry and how something rarely gets done without their involvement. Still, it’s becoming a habit to see media conglomerates such as Viacom complaining about Google not being efficient enough in finding and removing the works it owns. Furthermore, Viacom even wants Google to do all the searching for and removing of these works without needing any prior notification.

The Guardian draws attention to one crucial issue involving ContentID that gets overlooked with: “the use of ContentID by those who falsely or incorrectly assert ownership over public domain works – works that have no copyright at all – and then either block access to the videos, or collect the advertising revenue from these videos.”

Here’s where FedFlix comes into play – a charitable project spearheaded by Carl Malamud, as publicresources.org explains – “a joint venture with the National Technical Information Service (NTIS) in cooperation with other government agencies including the National Archives. They send us government videotapes, we upload them to the Internet Archive, YouTube, and our own public domain stock footage video library— then we send the government back their videotapes and a disk drive with their digitized video.”

Under US law, anyone can freely use government creations as they are in the public domain; however, it can’t really be said that the US government is too concerned with making its treasures easily accessible to the public (that, in essence owns them).

Malamud’s group pays the fees associated with retrieving copies from the US government – sometimes buying high-priced DVDs that the government issues, other times paying to have unreleased videos retrieved from government archives – and posts them to YouTube, the Internet Archive and other video sites, so that anyone and everyone can see, download, and use them.

Malamud’s 146-page report from FedFlix to the Archivist of the United States documents claims that companies such as NBC Universal, al-Jazeera, and Discovery Communications have used ContentID to claim title to FedFlix videos on YouTube. Some music royalty collecting societies have claimed infringements in “silent movies”.

These companies’ claims – there are hundreds of them – have the potential to generate black marks on FedFlix’s YouTube account, and these black marks could lead to automated punishment from YouTube. Accounts that generate claims can be suspended or deleted, or lose the right to mark videos as being available as Creative Commons or public domain files.

As it turns out FedFlix doesn’t get much help from YouTube. While using ContentID’s dispute resolution system FedFlix can indeed contest these claims. It can actually do so only under three circumstances: “first, ContentID has generated a false match (that is, the video isn’t what ContentID thinks it is); second, the uploader has the right to the file, as demonstrated by written permission from its proprietor; or third, the use is acceptable under the US doctrine of fair use, or its counterpart in other laws, fair dealing.”

The big problem here is that FedFlix can’t use any of these basses for contestation. While ContentID is indeed right and the files are as it assumes, no rights holder can send a written permission notice to YouTube with regard to these files, since there are no rights holders in their case (they fall under the public domain). It means the posting of these files isn’t “fair use”, the latter actually translating as ‘lawful copyright infringement’ – which again means it is destined to a certain allowed purpose. In conclusion, FedFlix’s posting of public domain files cannot be copyright infringement, so they can’t be fair use.

To wrap up this colossal controversy, we quote again from The Guardian:

“The American public paid to produce these videos, and they own them, lock, stock and barrel. Multinational companies – the same ones who cry poverty and demand far-reaching laws like the Stop Online Piracy Act – have laid title to them, “homesteading the public domain”, and they are abusing Google’s copyright peace offering to steal from the public.”

But we’ve all come to know – or maybe the real problem is that most of us haven’t – how the whole system works (and that merely in its basics) and see how the lack of an organized lobby for the public domain it’s finally showing in an obvious manner its ruinous consequences. Maybe, this way there would be some balance and those who get to pull the strings and dictate penalties when it comes to copyright issues would themselves be subjected to the same law and sanctions.

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People Love Their Music Videos: YouTube behind FaceBook

November 3, 2011 by · Comments Off
Filed under: Announcements & Events, Entertainment Industry, File-Sharing Programs, Networks & Services, Tops 

Internet research company Experian Hitwise has recently published a report revealing the enormous increase in popularity of websites dedicated to video-sharing. According to this report conducted within one year (September 2010 – September 2011), this kind of sites have gained more than a third in popularity in the UK in the past year. As expected, YouTube places right at the top, accounting for about 70 percent of the new traffic boost.

The research identified music as the main reason responsible for this massive wave of UK internet users directing their attention towards video-sharing sites. Reportedly, 33 percent of the hits were music related (and sadly or freakily enough, the hits with the largest number were also Lady Gaga related).

Next in line comes TV shows with 17 percent, movies with 11 percent, gaming content at 10 percent and, finally, news with 9 percent.

The report says that watching videos takes UK users about 240 million hours per month from heir time. YouTube alone accounts for more than 184 million hours from that watching time.

The report is also quite edificatory with regard to social networking sites; it shows that sites like Twitter and Facebook take about 800 million hours from UK users’ time.

Currently, YouTube follows Google and Facebook, in terms of popularity in the UK.

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Viacom Assails Google Again over Copyright Issue

October 20, 2011 by · Comments Off
Filed under: Announcements & Events, Entertainment Industry 

Appealing to the United States Court of Appeals, Viacom hopes to overrule last year’s court decision which stated that Google is not liable for copyright infringement for Viacom’s content being uploaded on YouTube.

On Tuesday, Viacom’s law representative argued that the previous court made a mistake by declaring YouTube eligible for the safe harbor provisions of the Digital Millennium Copyright Act.

Back in 1998 when the DMCA was completed, ISPs attained an immunity provision for online service providers that followed certain guidelines, including the removal of infringed content when copyright holders sent notifications. Google’s defense was built around this basis and a federal judge agreed on it last year.

Viacom’s counterargument is that Google is not eligible for safe harbor and it brings two facts to sustain its claims. The company says that the DMCA not only requires ISPs to act when notified about copyright infringement, but also to take a stand if becomes aware of “facts or circumstances from which infringing activity is apparent.”

The Act also excludes from safe harbor firms that “receive a financial benefit directly attributable to the infringing activity,” and, as Viacom claims, YouTube’s infringing ads are a reliable source of revenues. The firm’s lawyer Paul Smith reminded the court on Tuesday about these facts. He pointed out that posting infringed material was the very source of YouTube’s success and that Google can do more about filtering infringing websites and content.

Google’s counselor Andrew Shapiro opposed the accusations by saying that the law does not force YouTube into implementing the latest filtering technologies. Furthermore, Google cannot do more about filtering as the task itself is almost impossible. He supported this claim by giving the example of Viacom’s employees uploading Viacom content and afterwards having difficulties on distinguishing which material was authorized and which was not.

Charles Sims, representative of a British soccer league, also argued that YouTube made a profit out of uploading pirated soccer clips.

However, it looks like Viacom’s struggle to put YouTube to the wall may be in vain. There are several cases dating back in 2009 – see Veoh and MP3tunes for example – in which the judges granted safe harbor to websites providing media content, based on the DMCA.

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