March 17, 2007

The Uses of the DMCA: Viacom v. YouTube

Filed under: Chilling Effects — Wendy @ 4:15 am

I have my complaints with the DMCA’s notice-and-takedown regime, but where I think it goes too far toward chilling speech, Viacom thinks it doesn’t go far enough. That’s the gist of its recent complaint against YouTube. Viacom argues that despite YouTube’s DMCA compliance, taking down videos when notified of copyright claims, the site should be held liable for direct and indirect infringement of Viacom’s copyrighted works (specifically, public performance, public display, reproduction, inducement, contributory, and vicarious infringement — what, no derivative works claim?).

Viacom is trying to renege on the bargain of the DMCA, in which copyright holders get pre-judicial injunctions against claimed infringement, and service providers are guaranteed immunity so long as they follow the takedown procedures. Viacom never alleges YouTube failed its side of the deal — it doesn’t point to a single un-complied-with takedown demand. Rather, it claims that requesting takedown is just too hard. Not content with a procedure that already strips away the free-expression protections of judicial oversight, Viacom wants to shift the burden to YouTube (and others like it) of preemptively filtering materials for possible copyright infringements.

Viacom’s approach would have serious anti-innovation consequences. The DMCA gives hosting startups a predictable framework. (Note that YouTube succeeded as an independent startup where the established Google couldn’t make Google Video popular.) Where hosts can’t anticipate what users will post, they can nonetheless ensure against copyright liability by promising to take down material they’re told is infringing, by any copyright claimant.

Viacom would instead have them negotiate first with (any? all?) copyright holders to install a pre-filtering system. Since automated filtering is far from perfect, this system would be both expensive and inaccurate. It would bankrupt the small startups and leave the larger ones open to the next lawsuit from a copyright holder who hadn’t been consulted on the first filter. Google might be able to go down that road, but they’d be about the only ones. Viacom and friends would have veto power over any newcomers to the field.

Now that may well be what Viacom wants. That veto is what they got with another provision of the DMCA, the anticircumvention laws, but it’s not what serves the public best. The safe-harbor bargain may be flawed, but Viacom’s proposed alternative is worse.


  1. I am not so sure about Viacom not following the DMCA. To gain safe harbor, platforms have to do certain things, and I am not sure if YouTube really qualifies for safe harbor.

    Here is a listing for safe harbor

    Would love to have an actual legal review, but seems to me that YouTube could be in trouble.

    Comment by RandomThoughts — March 17, 2007 @ 7:31 pm

  2. Prof. Seltzer,

    I think your post is too glib, and light on legal analysis. The DMCA safe harbor YouTube will invoke, 512(c), has three elements, of which notice-and-takedown compliance is only one. Lack of knowledge and no financial benefit with control are the other two. Given YouTube’s compliance, I doubt Viacom will attack them on the third element, but will instead focus on the facts or circumstances prong of the first element. YouTube needs all three elements after all.

    I’m sorry, but claiming Viacom is “reneging on the bargain” reeks more of spin doctoring than legal analysis.

    Comment by TF — March 21, 2007 @ 7:24 pm

  3. I think Youtube is actually a very bad thing in the copyright wars. Its a media broadcaster that steals content. It is detrimental to fair use on an individual level.

    Youtube claiming safe harbor status clouds the issue and actually risks damaging true providers such as ISPs.

    Comment by crack — March 22, 2007 @ 3:53 pm

  4. Does a site like YouTube have to take down content just because somebody claims it’s infringing? I think at least a “show me the copyright” should be required even under present circumstances. Viacom could otherwise claim anything they don’t like (a “Viacom Sucks” movie, for example) is their intellectual property (unless of course it belongs to some other conglomerate).

    How is a site supposed to know what to take down without getting a list of copyrights, presumably supplied by Viacom?

    Comment by Marc Sacks — March 23, 2007 @ 4:59 pm

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