Google.com 'infringement factory'? : HostingPool.com

Stephen Foley reports
There is a young woman in spectacles and an orange wig dancing around her bedroom doing an out-of-tune spoof of the song "YMCA", complete with arm-waving and expletive-riddled lyrics. Nothing out of the ordinary there, then, because of course, this is YouTube.
The song is actually pretty funny, and decent satire. It's called "DMCA", after the Digital Millennium Copyright Act, the US law that enshrines some of the rules websites such as YouTube must abide by if they don't want to get sued by the owners of copyrighted material posted by their users.
Our singer has just been barred from YouTube, she says, after posting a TV clip owned by Viacom, the owner of MTV and Comedy Central, home to SpongeBob SquarePants and South Park. Under the DMCA, YouTube has to take down copyrighted material when the owner complains, and the website bars repeat offenders.
Viacom is something of a villain among YouTube users ("a big fat copyright bully", according to another popular clip). That is because, unlike most other media companies, which have entered into licensing deals with YouTube and share revenue from ads that appear alongside their clips, Viacom gets all of its material ripped down.
That came as a shock to those users who first arrived at YouTube two years ago simply to watch the previous night's edition of The Daily Show with Jon Stewart, or something very similar.
All of which is nothing to just how much of a villain Viacom is round at YouTube headquarters and at the Silicon Valley Googleplex, home to the search engine giant, which paid $1.65bn (£830m) to buy YouTube in 2006.
Viacom has launched a $1bn claim for damages over all those copyrighted clips, 150,000 of them, watched over 1.5 billion times, according to its lawsuit. Lots of other media rights owners have joined a parallel legal action, anchored by the UK's own Football Association, which says hundreds of Premiership goals were uploaded to YouTube without authorisation.
Also on board that suit are the Scottish Premier League, the French Tennis Federation and the music publishers that own rights to songs by Elvis Presley, Meat Loaf and ZZ Top, among many others.
Chad Hurley and Steve Chen, the YouTube founders, who became rich men when Google swooped for their company, are among several Google executives likely to be asked to give evidence in legal depositions in the coming months as the FA case progresses.
The outlines of Google's defence, however, have now become clearer. In a court filing this month, it says YouTube is going "far beyond its legal obligations in assisting content owners to protect their work". As well as removing copyrighted material as soon as it is reported, YouTube offers media companies software to identify such material, and actively pursues users – like our friend in the orange wig – who routinely breach its terms.
Its opponents say YouTube has to be much more proactive in scanning for copyrighted material itself, however inconvenient and expensive this might be.
Above all, Google says it is protected under the DMCA, passed by Congress in 1998 specifically to allow the development of websites such as YouTube, which have turned the internet from a passive experience to something we all now call Web 2.0, an internet rich with user-generated content, interactive discussion and self-expression.
"By seeking to make carriers and hosting providers liable for internet communications, Viacom's complaint threatens the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression," Google's defence submission says.
Not for the first time, Google is posing as defender of the internet. But David Axtell, intellectual property specialist at the law firm Leonard, Street & Deinard in Minneapolis, says all this talk about freedom of expression is a red herring.
"This is only about freedom of expression to the extent that it affects YouTube's business, and I think Google will have trouble with this suit," he says. "The safe-harbour provisions of the DMCA only apply if a website does not reap a financial benefit directly attributable to the copyrighted material. Google knew when it bought YouTube it was an infringement factory.
"People weren't visiting so as to watch some goofy video of their friend falling over. They were watching news clips and whole episodes of The Simpsons. Even today, go to the list of most-viewed videos and it is chock-full of professional video."
That the case is important, though, is not in doubt. Corynne McSherry, attorney for the Electronic Frontier Foundation, which fights for free speech on the web, says there will be a wide ripple effect across Web 2.0 companies – everything from local discussion forums up to the mighty Facebook, the social networking site whose users are increasingly swapping video.
"This goes to the basic question of what are the limits of the DMCA's safe harbour provisions," says Ms McSherry. "This case has brought it right to a head. Viacom has stepped up to the plate to push this issue, and Google has pushed right back. Viacom wants to say that YouTube is not within those provisions because it knows there is all this infringement going on and is doing nothing about it.
"If YouTube is not doing more than enough, that will have profound implications because a lot of companies have built, and are still building, businesses around those safe-harbour provisions. Almost every Web 2.0 company, anyone who hosts user-generated content, is sitting between the safe-harbour provisions of the DMCA in one way or another."
William Hart, attorney at the New York firm Proskauer Rose, which is representing the Football Association, says he is trying to have that case certified as a class action, which would mean any copyright owner who has seen its material appear on YouTube could join a claim for damages – a fact that might mean that, if it loses, Google ends up paying out more in compensation than it paid for YouTube in the first place.

"The idea of the class action is that we can help parties that probably wouldn't go into battle with a goliath like Google, because they simply don't have the resources or the administrative staff to do it," says Mr Hart.
The situation is fluid and case law is still being developed, but in related areas, courts have been coming down hard in favour of copyright holders.
In 2005, for example, the US Supreme Court ruled in a dispute between the film company MGM and tech firm Grokster that the creators of file-sharing software could be held liable for the actions of users who swapped copyright-protected content. These and similar rulings have made Web 2.0 companies nervous – and that is why they cling so furiously to the DMCA and the protections it enshrined.
The only question now is whether this really will get resolved via the Football Association and Viacom cases. Most observers say Viacom at least is pursuing licensing negotiations by other means, having failed to accept the revenue-sharing terms accepted by other media companies.
Mr Axtell says it will come down to the dollars. "If there is a settlement to be had, don't expect Google to keep fighting this just in order to prove a point."

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