Google, Viacom Lawyers Square Off on DMCA - Page 2

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Not quite a 'safe harbor'

There are three reasons, said Fricklas, that the DMCA does not offer Google any kind of "safe harbor."

First off, section 5.12 of the DMCA only protects companies with four kinds of service, and according Fricklas, YouTube's service isn't one them.

Part 5.12(A) protects companies that own and operate the Internet's infrastructure. Part 5.12(B) protects companies that host temporary caches. Part 5.12(D), he said, allows Web sites to link to copyrighted materials without infringing.

Google, Fricklas said, claims part 5.12(c) provides it safe harbor.

But according to Fricklas, part 5.12(c) protects companies that provide hosted storage, and YouTube is not a storage company as defined by the law.

YouTube has elements of a storage service, Fricklas allowed, but only in the way a TV station does. It stores video content and then makes it viewable for the public.

The second reason Google isn't protected by the DMCA, Fricklas argued, is that the law doesn't protect any business where the model is to derive financial benefit from attracting people to the copyrighted content stored on its site.

Even though YouTube doesn't serve advertisements inside the videos, Fricklas said the copyright-infringing videos drive traffic and increase the value of the advertising on the site's edges. That's financial benefit, he said, and it will ultimately deprive Google from safe harbor.

That's because Fricklas believes Google has the "right and ability" to prevent users from uploading illegal content to its site.

For his third DMCA-related argument, Fricklas said section 5.12 makes it clear: For a company to have safe harbor it can't have knowledge of infringing activity.

Fricklas is aware that Google's claims it doesn't have that knowledge; he just doesn't believe it.

"YouTube makes all kinds of interesting arguments around the boundaries, OK? And we could have all kinds of interesting disputes around the boundaries," he continued. "But when a full-length motion picture shows up on YouTube, or when a full-length episode of a copyrighted show or even a 10-minute clip of a show ends up on the YouTube homepage, don't tell me they don't know about it.

"It's in the front page of every newspaper. It's in our complaint. You can't tell me YouTube doesn't know there's infringing content going around."

Viacom's DMCA interpretation makes for "good law," Fricklas said, in the same way it makes more sense for a polluting manufacturer to spend $1 million to put scrubbers on its smoke stacks than for a city to spend $1 billion to clean up later. Courts should force Google to pre-screen all uploads to YouTube rather than ask all the world's copyright holders to search the site every day.

A world without Web 2.0?

Roger Schecter, a professor of law at George Washington University and member of the advisory council of the McCarthy Center for Intellectual Property and Technology Law at the University of San Francisco, told internetnews.com he mostly agreed with Google's lawyer Brown and his interpretation of the DMCA.

First, that a video clip appears to be commercially produced does not necessarily mean it's copyrighted. Besides, he said, a viewer can't determine the copyright owner or what they'd want done with it just by looking at it.

Nor did Professor Schecter buy Fricklas and Viacom's argument that forcing Google to prescreen all YouTube uploads would be so much more efficient.

It's conceivable, Schecter said, that if Google were forced to prescreen all videos uploaded to YouTube, blog networks and photo-sharing sites might someday be open to litigation if they did not do the same.

There is an argument that such a threat could stifle growth on the Internet.

Part of the reason for Silicon Valley's resurgence is the user-generated content platform. It eliminates the cost of content creation, keeping margins tight and turning any revenues into profits for venture capital.

And besides the cash benefits for venture capital, such a model has, like a treasure chest, given the world more than just YouTube.

Let's not forget the numerous blog networks (WordPress, Blogger, Typepad, etc.), Flickr, Digg, Facebook, MySpace and Photobucket. According to a loose tabulation of comScore numbers, there's about a billion or so Internet users happy about all that.

To Viacom and more than a few content owners, however, that treasure chest is a Pandora's Box. They are essentially concerned that this Web 2.0 world will not reward them for their work.

Opening arguments begin July 27.