Buckley,B . "SueTube: Web 2.0 and Copyright Infringement" The Columbia journal of law & the arts [1544-4848]

The article extensively illustrates the development of Web 2.0 and the emergence of Youtube as one of the most popular websites on the internet. The author then summarizes Youtube’s liability protection under the Fair Harbor law. My interest in this article, however, stems from its discussion of the filtering software used by Youtube. “Youtube recently unveiled a video identification service which would create digital fingerprints of material that content providers wish to have protected.” If a video is uploaded to Youtube that matches the fingerprint of a copyrighted work, the owner can request that it be removed. Extensive tests have already been conducted: in one case, the system caught 18 instances of infringement after a service uploaded over 4400 hours of content to Youtube. After a copyright owner identifies infringing work, it can either have the material pulled or, even more incredibly, have its own advertisements added to the video. This technology is very appealing to Youtube because adopting it will show courts that it is doing all it can to remove copyrighted material. However, several factors make this protection unappealing. First, the “fingerprints” rely on a library of original content with which to match against infringing content. Thus, copyright owners will have to provide an extensive library of material to Youtube before being able to find their illegally uploaded material on Youtube. It is similarly unclear whether this technology will be able to identify slightly altered versions of original clips uploaded to the website. Fair Use advocates are equally concerned that the software will remove their own Fair Use works, mistaking them for infringing material.

This is an important article because it discusses Youtube as a company increasingly working for the Copyright holding companies rather than for its own users. Youtube is constantly in danger of copyright litigation: even the DMCA will not protect the company if plaintiffs can prove that Youtube is directly benefitting financially from copyrighted content. By signing deals with content owners that allow the owners to add advertisements to any of their content that was illegally uploaded, Youtube has cleverly created a way to profit from illegal content. Youtube also signed agreements with content owners to provide studio shows and clips on its services. This mitigates the temptation for users to upload illegal videos, especially if they can watch the legal version on the exact same website. However, by blindly implementing filtering software that automatically flags seemingly copyrighted material, Youtube may be dooming Fair Use works. Rather, Youtube should alter the filtering software so that it only flags videos that are either entirely made up of one video clip or contain a part of a copyrighted video with the corresponding audio from that clip playing as well. Many Fair Use artists will take the video but not the audio portion of a clip and mix it with other clips. Youtube can thus appease the studios and courts while still emphasizing the importance of its community of users, whom it built the website for in the first place.

Kunz,P . "Whose Tube? - A Contributory Copyright Infringement Analysis of the Pending Lawsuit, Robert Tur v. Youtube Inc." DePaul University Journal of Art and Entertainment Law

Robert Tur is a Los Angeles photographer famous for his coverage of the infamous car chase of O.J. Simpson in 1994. His lawsuit against Youtube marks the first high-profile case in which Youtube is accused of inducing infringement. His main argument stems from the case of MGM Studios v. Grokster, in which the court held that one who “distributes a device with the object of promoting its use to infringe copyright is liable.” Youtube’s immediate response to this complaint included a defense that it was protected by the DMCA, which protects ISPs. Tur claims that Youtube is liable for Contributory Infringement due to its inducing of infringement by users. Mr. Kunz discusses that Youtube qualifies as an ISP based on the court’s decision in Hendricson v. eBay, in which it ruled that operators of an Internet website can qualify as an ISP. While Kunz provides analysis of Youtube’s lack of liability under the Safe Harbor law, I plan to use his comparison of Youtube to other previous cases more extensively in my paper.
 

In terms of the Sony video tape recorder, Youtube is similar in that it has substantial non-infringing uses: it actively encourages home movies; it has fostered the creation of original web series such as Loneygirl15; and it has recently signed deals with major content providers like Sony BMG. In the Napster case, the court held that services could be liable if they have direct knowledge of specific examples of infringement. When copyright holders informed Napster of infringing works, Napster simply penalized the offending users, without removing the offending files. They were thus knowledgeable of directly infringing files available. Youtube, on the other hand, immediately removes offending files once they are reported and also uses Fingerprinting technology to prevent similar files from being uploaded. Napster officials also purposefully remained ignorant about user accounts because they knew users were pirating music, whereas Youtube officials encourage content creation over pirating. According to the Grokster ruling, services can be liable if they have the intention of promoting, or inducing, infringement. While Grokster distributed software with the intention of allowing users to illegally download and retain the pirated material, Youtube requires users to watch material on its services. Thus, it does not foster piracy because it does not permit users to download videos. The court also found Grokster liable because it did not create filtering material to remove copyrighted works, while Youtube has actively worked on such software.

The information in this article will be extremely useful as I argue that ISPs like Youtube are not liable for copyright infringement that occurs via their services. The author of this article does a successful job of linking Youtube’s case to other precedents that have been ruled by courts. While this case is specifically relating to the Tur v. Youtube lawsuit, the Viacom v. Youtube lawsuit is very similar. Youtube brilliantly distinguishes itself from previous infringing services and thus strengthens its position against Tur and Viacom.