In March, I criticized YouTube's founders for their apparent disregard for copyright law during the site's first few years of operation. Internal e-mail messages that were released as part of a billion-dollar lawsuit that Viacom filed against Google, which owns YouTube, suggested that the founders "were aware of a lot of infringing content on the site but decided to ignore much of it in order to keep YouTube growing," I wrote.
Sure, e-mails also showed that Viacom—which owns MTV, Comedy Central, and several other TV and film properties whose clips were a hot item on YouTube—was acting in pretty shady ways. At the same time that it was accusing YouTube of theft, Viacom had hired marketing agents to surreptitiously post clips on YouTube in an effort to score viral hits. Still, I argued, Viacom's actions didn't excuse YouTube's founders. Several e-mail threads indicated that creators Chad Hurley, Steve Chen, and Jawed Karim were making up their own rules about copyright as they went along. ("Take down whole movies, take down entire TV shows, take down XXX stuff," Chen decided at one point, but "everything else keep including sports, commercials, news, etc.") That didn't seem kosher; if the case proceeded, I predicted, Google would settle with Viacom in order to avoid an expensive defeat for what I called "YouTube's original sin."
Well, I guess I should upload a video apology to YouTube, because boy was I wrong.
On Wednesday the judge in the case, Louis Stanton of the U.S. District Court for the Southern District of New York, issued a surprising order granting YouTube's motion for summary judgment. In other words, YouTube won. The judge ruled that YouTube had complied with the "safe harbor" provisions of the Digital Millennium Copyright Act, the statute that governs how Web companies must manage copyright claims.
This is where I was off the mark. E-mail in the case presented plenty of evidence that YouTube knew it was benefitting from infringing videos. Stanton conceded that "a jury could find" that YouTube's founders "not only were generally aware of, but welcomed, copyright-infringing material being placed on their website." I saw that e-mail as a smoking gun, but I hadn't paid attention to where the gun was pointed. So what if YouTube knew some videos might be illegal? A mere "general awareness" of infringing content doesn't constitute a violation of the law, the judge ruled. Instead, what matters is what YouTube's founders did each time they were given notice of a specific infringing video. What did they do? They took the video down. And as long as they did that, they were acting within the law. ("Safe harbor" basically means you have less or no liability if you acted in good faith.)
Stanton's ruling resolves a long-standing argument between Web companies and entertainment companies on the question of how to police the Web. The debate boils down to this: Web companies want most content that people post online to be presumed innocent; if a copyright owner comes along and says that a certain video is illegal, then a Web site must take it down, but otherwise it stays up. Entertainment companies have been pushing courts to impose the opposite standard: Much of what people post online ought to be considered infringing, they argue, and Web companies should take steps to prove that the content is legitimate before they let it stay online. If a Web site has doubts about whether a video, song, book, or something else has been authorized to be online, it should remove it, even if the copyright owner hasn't sent a formal takedown notice. In other words, both sides want the other to be the police.
The judge in this case sided with Web companies. Viacom, though, says it will appeal the decision, so the rules for what sites should do about potentially infringing content will remain in limbo.
What's ironic about this case is that in practice, YouTube currently seems to comport with the standard that Viacom wants. Viacom argues that Web sites should pay attention to "red flags" that indicate uploaded content may be infringing. After Google purchased YouTube in 2006, the company built a system called Content ID that takes down potentially unauthorized material by looking for just the sort of red flags Viacom has outlined.
Remember those parodies of Hitler fuming about trivial things like getting banned from Xbox Live? In April, YouTube began to pull many of those down. The site hadn't received a formal takedown notice before doing so; rather, it deactivated the clips because Content ID had fingered the videos as infringing. (The parodies used footage from the movie Downfall and added new subtitles.) In other words, YouTube pulled them down merely because it had doubts about the clips' legality, which is exactly the standard Viacom wants. In fact, as parodies, many of those clips would likely have been deemed legal under the fair-use exemptions to copyright law. Fortunately YouTube's system allows parody makers to contest Content ID's rulings; many have since been restored.
Viacom says that it has no objection to how YouTube operates now—its beef is with YouTube's early practices. So why press on, when YouTube has reformed itself? Because a ruling in Viacom's favor would have much wider repercussions. It would shift the balance of power between Web companies and entertainment companies, requiring sites to essentially ask permission or seek licenses from Hollywood and the music labels before innovating. Some of the world's biggest Internet companies—not just YouTube, but also Facebook, Amazon, Yahoo, eBay, Flickr and others—would never have been able to get off the ground had they been required, as struggling startups, to constantly police their networks for potentially infringing material.
You might argue that the site's capacity to investigate its network is irrelevant; if startups are aware that their sites are filled with stolen stuff, shouldn't they do something about it?
Well, but who's to say what's stolen? Sure, YouTube's founders thought that that some of the stuff on their site didn't look legal—but we also know, in retrospect, that some of it was authorized, secretly uploaded by Viacom itself. Fortunately, there is a common-sense way to decide whether a certain video should be online: If the content owner objects, take it down. That system works pretty well as it is. Yes, this becomes more difficult when sites achieve the vast scale of YouTube, which now sees about 24 hours of video uploaded every minute. But innovations like Content ID show that instead of fighting about copyright in court, Web sites and entertainment companies can work together to solve the potential for mass copyright infringement. This is a much more creative and useful approach than a lawsuit, and YouTube's victory will ensure more such collaborative efforts between Web companies and entertainment companies. I'm sorry I ever argued that we should look for another way.