“Caveat Creator,” The DMCA According to Google

June 23, 2010

2005_youtube3All Google Needed Was An Effective Takedown System to Reach the Safe Harbor

In granting summary judgment against Viacom on the grounds that Google was a legitimate Online Service Provider with an effective takedown system, and therefore entitled to receive the benefit of the DMCA “Safe Harbor” under 17 USC 512(c), the District Court cites copious amounts of legislative history establishing that without the safe harbor, the Internet might not grow robustly.  (Download PDF) Google’s general knowledge that there was a whole lot of infringement happening on YouTube didn’t mean that it was obligated to start screening for infringing content or hunting it down once it was posted, because their job is just to have an effective takedown system to remove content once the creator tells them it’s infringing.  The burden of discovering infringing content never shifts to the Online Service Provider, and it’s always the copyright holder’s job to find it and identify it by URL.  The court said:

Mere knowledge of prevalence of such activity in general is not enough. That is consistent with an area of the law devoted to protection of distinctive individual works, not of libraries. To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.

YouTube Is DMCA-Friendly, Napster Was Not

The court also held that even though YouTube technology made it easy to infringe, that didn’t make it like Grokster or Napster, because those were systems that were designed to foment piracy.  This is an interesting distinction, because creating a video bazaar where everyone knows you can find stolen content doesn’t seem that different from creating a file sharing system where everyone knows you can create stolen content, but it’s different in one important way — Napster and Grokster never went around deleting content, and had no mechanism that would allow a copyright holder to locate where the content was and send a takedown notice.  This really means that some technology is DMCA-friendly (YouTube-style video communities) and some is not.

Ad Revenue From Tainted Traffic Is Pure

The court rejected the argument that Google should lose the DMCA safe harbor because it was generating ad traffic by having a site that in general, contains a lot of infringing content.  This part of the opinion isn’t very satisfying.  The court seems to be finessing the issue when it says:

The safe harbor requires that the service provider “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 ” § 512(c) (1) (B). The “right and ability to control” the activity requires knowledge of it, which must be item-specific.There may be arguments whether revenues from advertising, applied equally to space regardless of whether its contents are or are not infringing, are “directly attributable to” infringements, but in any event the provider must know of the particular case before he can control it.

That’s a distorted reading of “right and ability to control.”  Google has the right and ability to delete every single video on the whole site, or to just turn it off altogether. Google has the right and ability to delete every single video on the whole site, or to just turn it off altogether.  To say they have no “ability to control” infringing videos until they know that they are infringing is like saying I can’t control my appetite until I know the caloric content of my food.  If I were Viacom, not that I want to be Viacom, I would tell my lawyers to appeal on the grounds that the district judge distorted the meaning of the statute here.  After all, the court admitted that Google was working the system:

From plaintiffs’ submissions on the motions, a jury could find that the defendants not only were generally aware of, but welcomed, copyright-infringing material being placed on their website. Such material was attractive to users, whose increased usage enhanced defendants’ income from advertisements displayed on certain pages of the website, with no discrimination between infringing and non-infringing content.

Let The Creator Beware

If Google can generate ad revenue by taking in every kind of content without distinction, and make money on the infringing attractions, then Google can “work the float,” and always have enough infringing content to keep its blood pressure up at the expense of copyright holders.  The only way that content owners can act proactively is by implementing digital “fingerinting technology” through the “Claim Your Content” system that Google uses as its only screening mechanism.  Fingerprinting your content is not, however, cheap.  So what this opinion seems to announce is a doctrine of “Caveat Creator,” let the creator beware.

Will The Real Free Speech Provider Please Stand Up?

Please don’t take me for a copyright hawk, but this seems like a ruling that benefits a company that has made a habit of turning other people’s work into their payday, and is being encouraged to keep on doing it.  Meanwhile, real free, nonprofit libraries that have no advertising revenue, are discouraged from putting the works in their archives on the Internet where scholars and researchers can use it for fair use purposes, because publishers do not respect the fair use protections of 17 USC 107 (the Library Exemption from copyright infringement liability).  I am currently defending the American Buddha Online Library against a suit from Penguin, and although I won on jurisdictional grounds in New York District Court, Penguin appealed, and the Second Circuit court of appeals is now asking the New York State Appeals Court to take a look at the issues and see if something better can be worked out for Penguin by tweaking New York state law.  I am doing this case pro bono, because I’ve been well acquainted with the director for many years, but few libraries have a handy intellectual property lawyer to handle their cases.  So true freedom of speech on the Internet is getting suppressed by copyright lawsuits while Google gets to keep minting money by working the DMCA like a money pump.  Nice work if you can get it.