The Law Developer

     In the past couple of weeks, three important decisions regarding copyright infringement have been made by various courts. LimeWire, ISOHunt, and RapidShare all involve companies that allow users to share and download files. While there are technical differences as to how each of them work, from a high level, these applications all perform pretty much the same functions. Yet one of these companies, RapidShare, made out okay while the other two will most likely be shut down. So what’s the difference?

     Let’s start with some history. The Grokster case sets the stage for all three of these cases. Grokster provided software that allowed users to share files via a peer-to-peer file sharing network. Normally a company whose products could be used for copyright infringement but have a valid, non-infringing use would not be liable for the infringement of its users. However, in this case the court found that Grokster induced its users into infringing and was thus held liable. This wasn’t too far of a reach for the court, considering that Grokster marketed its application as a way to download copyright infringing content. Ever since, companies have been very careful as to how they market their applications.

     This brings us to LimeWire and ISOHunt. In the former case, the court held (among other things) that LimeWire’s purchase of search terms induced users into downloading copyright infringing material. LimeWire purchased search keywords for the terms “napster”, “kazaa”, and “morpheus”, all popular applications for downloading copyrighted material. The court found that by associating itself with these keywords, LimeWire induced its users into downloading copyrighted material. ISOHunt is in the same boat. The court found that “evidence of Defendants’ intent to induce infringement is overwhelming and beyond reasonable dispute.” These two cases show that courts don’t take kindly to file sharing sites, but then how did RapidShare get so lucky?

     First of all, the RapidShare case is still in the preliminary injunction phase, so the case is far from over. But RapidShare does something different than the others. When RapidShare finds infringing material , instead of just deleting the offending material, it attempts to provide a link that allows users to purchase the material legally. At a time when courts are slapping down file sharing sites, this little action seems to have made a big difference. It shows that RapidShare actively seeks out and removes infringing content.

     RapidShare’s future is still anything but certain, but at least it is starting off on the right foot. Unfortunately for LimeWire and ISOHunt, their fates are pretty much sealed. But maybe the big difference in outcomes just depends on the plaintiff. In RapidShare, the plaintiff is an adult entertainment company as opposed to mainstream movie companies as in the other two cases. Perhaps the courts are alright with being prevented from getting the latest ‘Sex and the City’ movie, but take away their favorite means of downloading porn and well…

Stephen Burch

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     Viacom is suing Google, owner of the popular Internet video site YouTube, for alleged copyright infringement. While the DMCA provides a safe-harbor provision to website owners when their users post infringing content, it also provides a take-down notice procedure which provides for a copyright holder to request that a site remove infringing content before taking any legal action. As long as the website owner obliges this request, they are usually not liable for the infringing content of their users.

     So, assuming Google followed this protocol, why is Viacom suing Google? Well, it is claiming that Google did not do enough to stop infringing content. But it didn’t stop there. Viacom claims that YouTube was built on infringing content and that one of its founders was intentionally stealing videos to get more traffic. This is from an email from YouTube founders:

“We’re going to have a tough time defending the fact that we’re not liable for the copyrighted material on the site because we didn’t put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it.”

     That doesn’t sound good. In its own defense, Google writes a blog post that explains the measures it takes to protect copyright holders. Google also tells an interesting story of how Viacom has secretly uploaded videos of its shows (Viacom owns, among others,  MTV and Comedy Central) to YouTube from different computers and under different user names. Google claims that Viacom even went through the trouble of degrading the videos beforehand so that it would look pirated.

     So should Google be immune from liability for copyright infringement? The Safe Harbor Provision was meant to provide immunity to sites like YouTube, provided that certain conditions are met. The condition that Viacom claims Google doesn’t meet (as illustrated in the email above) is the “Knowledge of Infringing Material”. If the offending site’s owner knows of the infringing material and does not remove it, he can be held liable. Viacom is trying to show that YouTube not only knew that infringing material was on its site, but that it put the material there itself. The major problem with this argument is that the email is from 2005 and the infringing material it discusses has not been shown to be owned by Viacom. In its memo (pdf) and blog posts, Google discusses the measures it uses to screen for copyrighted content and alert the video’s owner. It also discusses the fact that almost every video on YouTube is copyrighted (including that “video of your cat playing the piano”). Google claims the real issue is whether or not the copyright owner wants the video to appear on the site. And it seems like Google has a very sophisticated system that tries to identify the copyright owner of media company videos and alert them to the existence of an uploaded video. This is clearly above and beyond what is required by the Safe Harbor Provision.

     According to the Reuters article, users of YouTube upload more than 24 hours of video every minute. Google even goes so far as to take active measures to review the voluminous amount of video footage and flag potentially infringing material. Legally, I believe it should be immune from copyright liability. More importantly though, I believe that sites like YouTube actually help make Viacom money. When somebody sees something on TV that they find entertaining, the next day they will show their friends and coworkers the video on YouTube. In an age where viewers fast-forward through commercials, companies are spending significant amounts of money trying to figure out how to market their shows. YouTube has created a way for viewers to market the show to their friends for free. YouTube helps build viewership. If the allegations made by Google are correct, Viacom is also well aware of this fact. That is why it continues to upload its own videos. The Internet is constantly changing  how people seek out their entertainment and some companies, although enjoying the benefits of the Internet, are really taking issue with some of the drawbacks. In this case, Viacom is using YouTube to promote its content while simultaneously suing YouTube for promoting its content. For the sake of the Internet, I hope this case is decided quickly in favor of Google.

Stephen Burch

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