Intellectual Property

Saving the Safe Harbor


Good news in the YouTube/Viacom suit:

Entertainment companies may find it harder to keep movie and TV show clips from circulating for free online after a federal judge on Wednesday threw out Viacom's hotly contested $1 billion copyright infringement suit against Google's YouTube.

U.S. District Court Judge Louis Stanton said that the popular video website could not be held responsible when people post clips from productions such as Viacom's The Daily Show with Jon Stewart and The Colbert Report without the entertainment giant's approval….

Stanton said that the Digital Millennium Copyright Act includes a "safe harbor" provision. It was designed to relieve websites from the burden of checking user-generated material before it's posted.

Even at YouTube, where lots of people violate the law, "mere knowledge of the prevalence of (copyright violations) in general is not enough" to make the site liable, Stanton said.

Stanton also noted that YouTube has been quick to remove clips that violate copyrights after they're brought to the company's attention. On a site where users upload over 24 hours' worth of video every minute—much of it perfectly legal—that approach makes far more sense than reviewing everything in advance, a requirement that would undermine the very idea of user-generated content.

For a pdf of the decision, go here.

NEXT: Nick Gillespie on Fox Business' Freedom Watch, Plus Who's a Libertarian These Days?

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  1. Good decision. It keeps intact the sanctity of copyright protection while placing the penalty where it belongs–on the media thief–so long as the host makes a good-faith effort to remove pirated material when asked.

    1. Anarchists: discuss.

      1. Ain’t nothing “sanct” about copyrights. Still, am surprised judge made a good common sense decision here. Don’t worry though, the ratchet still as plenty of time to tighten on this one.

    2. So if a bank is robbed, should the getaway car driver not be held liable as long as he forces the robber to leave his car after the bank informs him that they’ve been robbed?

      1. Don’t be his porn.

        1. Or his fluffer. I prefer fluffer.

          1. Are you guys and SF willing to pay me to avoid him? I take PayPal.

            1. PayPal accepts nuggies, atomic wedgies, and Texas chili bowls? That’s good to know, Nick, because your first payment is on its way.

      2. What? How is that parallel?

        Whatever, I’ll run with it. Sure, if the driver is a taxi service, who accepts the bank robber as a legal fair, up until he finds out he just robbed a bank.

  2. You find it, you notify us and then we’ll remove it. Go sue the college student for damages.

    I like this.

    1. We’ll be along shortly to fix this.

    2. Agreed. But, I have to ask, what damages?

      Case in point: someone ripped and posted all of Cloverfield on YouTube, in ten 10 minutes segments. Having been able to watch (with considerable FF) that execrable, whiny drek there saved me from wasting $$$ to watch it elsewhere, allowing me to spend my money of more useful things. The market worked!

      1. I guess if I stole your TV I could use the money I saved on buying one to buy something else, but I’m not sure that means the “market worked”.

        1. A. I was half kidding, and
          B. You never rarely argue in good faith, so DFTT.

  3. I didn’t know how they’d formulate the decision, but when the suit began, I knew it would end with Big Infringement being effectively freed from liability, while random bastards sharing things remain under threat at lawyerly whim. Ta-da.

    Anarchists: discuss.

    In anarchotopia, if I were someone whose work was misappropriated for the benefit of Google, for every uncontracted pageview my work got them, I’d kill a member of one Google employee’s family.

  4. So basically Google can make money off of other people’s legally protected work simply by looking the other way?



  5. YouTube is a conduit. Like the Post Office or FedEx.

    Anyone who thinks YouTube should be liable for information it carries needs to explain why FedEx or the Post Office shouldn’t be held liable whenever they deliver pirated content or an unauthorized copy.

    1. The cable and telephone wires are the literal conduits. YouTube is the storage and distribution site. Not that it makes a difference.

  6. I wonder if there is a way to get a “fair use” case in front of Judge Stanton.


  8. The difference is that the USPS and Fed Ex make money by charging Person A to deliver a package to Person B with the understanding that the contents of the package will remain private.

    In YouTube’s case, Google is making money by accepting something not private for free from Person A and then selling it (via site advertisments) to multiple people on the other end.

    It’s hard to side with Viacom but I think YouTube’s argument – that it’s too much trouble to make sure that what they’re selling is legal – rings hollow.

    1. The argument is that congress, by passing the Digital Millennium Copyright Act, says they don’t have to. IIANM (and I rarely am) the constitution specifically authorizes the federal government to enact and enforce copyright and patent laws. Any bitch you have should be taken up with your congresscritters, not Google or U.S. District Court Judge Louis Stanton.

      I’m a big supporter of IP and I’m painfully aware that most present IP law (especially copyright law) pretty much sucks donkey dick. That said, the safe harbor rule for internet hosting entities is actually pretty decent law.

      1. Fair enough if that’s the law.

        I was aruging principle, that being that it’s odd that somebody can sell IP property that belongs to somebody else as long as they stop when told.

        1. I was aruging principle, that being that it’s odd that somebody can sell IP property that belongs to somebody else as long as they stop when told.

          If you want to troll, at least get the basic facts right. Google does not sell user-generated content — so Google cannot sell copyrighted content that a user uploads in violation of the user terms and conditions (and applicable copyright law).

          Google sells advertising.

          1. Advertising serves as an indirect payment. They wouldn’t be able to sell advertising space if nobody visited the site.

            Basically, instead of viewers paying money to see the clips on YouTube, they pay by viewing advertisements.

            1. And the responsibilities for selling advertising are dramatically different than for selling content.

              The law specifies what responsiblity Google has for presenting user-generated content to other users. Google complied with the law. Viacom was completely wrong in pushing the lawsuit. In a raw display of intelligence, the judge noted this.

            2. They sell a service…the service of hosting videos we post. They aren’t selling the content.

          2. So, TV stations can broadcast any movie they wish? After all, they are not selling content. They are selling advertising.

    2. It’s hard to side with Viacom but I think YouTube’s argument – that it’s too much trouble to make sure that what they’re selling is legal – rings hollow.

      It’s not merely that it’s too much trouble, it’s that it is not their job.

      It is the copyright owner’s job to enforce their copyright.

      How is youtube supposed to know what is and what isn’t copyrighted material? Sure it’s obvious when the example is “The Daily Show” but what about more obscure and non-obvious material like indy films?

      Furthermore, the idea that youtube should be pre-screening assumes all copyright owners would object to their material being shown on youtube.

      If a user decides to post some obscure material that generates buzz for the work, and the copyright holder enjoys a benefit and doesn’t mind the distribution — in your world they wouldn’t have that option because youtube would have to pre-screen and not risk being held liable.

      And that doesn’t even get into the issues of what constitutes fair use and whether or not YouTube should/can make those decisions.

      And like it or not, the safe harbor act is the law. It explicitly protects youtube from liability for what their users do. Imagine what it would be like if websites were liable for everything their users post. Think of how much the internet would be censored by private entities who wouldn’t want to take the risk of being held liable.

      You may not think it’s correct, just like I don’t think the rest of the IP laws are correct, but they are what they are. And the safe harbor act is one of the best ways to walk the line when it comes to minimizing censorship while still protecting intellectual property.

      1. ChicagoTom: I guess you’re right that the law is what it is, but it’s hard to imagine that if we were talking about stolen TV’s instead of stolen Intellectal Property anybody would argue that somebody selling that property could just shrug his shoulders and act like he didn’t know…

        1. We’re not talking about stolen TV’s. And even were we talking about stolen TV’s, if I sold a stolen TV at a local otherwise legit flea market, the owner of the flea market is not held responsible for my stolen TV sale. That is unless it is shown that the owner knows about my selling stolen items, and gets a kick back for it.

        2. I guess you’re right that the law is what it is, but it’s hard to imagine that if we were talking about stolen TV’s instead of stolen Intellectal Property anybody would argue that somebody selling that property could just shrug his shoulders and act like he didn’t know…

          1. It’s not that hard to imagine. Think craigslist and ebay. Lots of people sell stolen goods. Should craigslist be liable for that? No. How are they supposed to decide what’s stolen and whats not.

          2. Apples to oranges.

          Copyright infringement isn’t theft. Making an un-authorized duplication doesn’t cause you to be unable to enjoy your product, like stealing your TV would.

  9. It sounds like the nub of the distinction is that content delivered via FedEx and USPS is expected to remain private, but content delivered via YouTube is not.

    So FedEx and USPS can’t be held responsible for content that they have no knowledge of, but YouTube does have knowledge of the content, and can be held liable. That makes sense.

    Of course, the really actionable knowledge is whether or not the content is illegal, not whether it exists. So the rule that YouTube should be held liable only when it has been given notice and refused to take down content sounds about right.

  10. I was also arguing that the USPS, et al, sell the service of moving a package from A to B.

    YouTube sells content donated by A to B.

    1. wrong. wrong. wrong. wrong. wrong.

  11. So kinnath, if you produced a movie and I made a copy of it for my TV station and aired it with advertisments, you could not consider this theft of money that rightfully should be yours?

    1. not relevant dickhead.

      The law covers websites that host user-generated content. The law provides a safe harbour. Speak to this issue or simply shut the fuck up.

    2. I would absolutely consider that theft, but I still wouldn’t hold YouTube liable for a theft they didn’t perform. All YouTube did was host the video.


  13. YouTube sells content donated by A to B.

    No, it doesn’t. It does not charge for content, so it is not selling content.

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