Viacom v. Google
The very next year, the DMCA and YouTube were put to the test. This shocked no one. After all, the DMCA was a compromise between hardliners demanding copyright liability for companies hosting user-generated content and purists saying nobody should be liable.
Many watched the case closely; it had the potential to upend the DMCA as we knew it. But in the initial ruling, US District Judge Louis L. Stanton of New York agreed with YouTube.
"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," Judge Stanton ruled in 2010. Stanton added that Google had no way of knowing whether an upload from a user was a "fair use," whether the uploader had licensed the content, "or even whether its copyright owner or licensee objects to its posting."
On appeal, Viacom told the 2nd US Circuit Court of Appeals that rights holders were doomed under Stanton's decision. If the DMCA as-is survived, Viacom argued, "it would radically transform the functioning of the copyright system and severely impair, if not completely destroy, the value of many copyrighted creations." (PDF)
After years of back and forth, Google and Viacom settled the case out of court last year for undisclosed terms. Money is not believed to have been given to either party, though Google said it racked up more than $100 million in legal fees.
The outcome left the DMCA unscathed and YouTube free to flourish. Along the way to that settlement, however, Google changed course on how it treated copyrighted works.
Ultimately, when you're a media giant like Google, it's always best to have content owners on your side and avoid the possibility of repeat suits or Congressional alterations to the safe harbor provisions. So the year the Viacom suit was filed, Google began testing what today is known as Content ID—an automatic system for detecting copyright infringement. The filtering system allows copyright holders to upload their content to a database which is scanned against new uploads to determine whether that content is infringing. The rights holder can have infringing videos easily removed or even place ads on them to generate income from videos that somebody else has uploaded.
DMCA takedown abuses
DMCA takedowns can be and are abused by overzealous rights holders or by people and companies seeking to stifle free speech. (On top of takedowns, the DMCA has other controversial elements, including its anti-tinkering provisions. These, for example, make it illegal to mod a gaming console to play home-brewed games.)
Since its introduction, Content ID has become a weapon for some. Rogue companies have even claimed copyright on user-generated content they didn't own in order to reap financial advertising bonanzas from YouTube.
But in response to a brazen copyright infringement claim, YouTube, and its users by extension, gained even more legal protections from the DMCA. In one particular case, Universal Music had shot itself in the foot and issued a DMCA takedown notice to get YouTube to remove a 29-second video of a toddler dancing to Prince's "Let's Go Crazy," which was barely audible in the background.
The dispute illustrated just how easy it was for rights holders to initially get content removed from YouTube, highlighting abuse of the notice-and-takedown provisions of the DMCA. However, the toddler's mother who uploaded the video challenged the notice, claiming it was a "fair use" of Prince's song. There are no bright-line rules on what amounts to a fair use; it's decided on a case-by-case basis.
The flap went to court, and Universal Music argued that it didn't even need to consider fair use when issuing a takedown notice. That proposition didn't sit well with the Electronic Frontier Foundation, which represented the mother in court.
"Universal's take down notice doesn't even pass the laugh test," EFF attorney Corynne McSherry said at the time.
Universal Music's claim didn't sit well with US District Judge Jeremy Fogel in San Jose, either. He ruled that the DMCA demands that rights holders must consider fair use of their copyright before demanding the removal of user-uploaded content.
"…in order for a copyright owner to proceed under the DMCA with ‘a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,’ the owner must evaluate whether the material makes fair use of the copyright," Fogel ruled (PDF) in 2008.
Fogel's ruling, of course, didn't halt DMCA takedown abuses. To this day, takedowns remain a gray area, and many takedowns go unchallenged. But the past decade of this law interacting with the new reality brought on by YouTube has made one thing crystal clear: the DMCA isn't perfect, and neither are its Silicon Valley offspring. But the world as we know it today couldn't exist without either.
Listing image by Flickr user: webtreats
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