Online Community: Just what is a copyright violation? Viacom vs. Google

In case you missed it, there is a great explanation of the two views of the world of online copyright being fought over right now by Viacom and Google. At the All Things Digital Conference held a couple of weeks ago, Viacom CEO Philippe Dauman gave his outline of what is covered and not covered under the Digital Millennium Copyright Act (DMCA) regarding copyright and how he views Google’s YouTube violations of that Act. Giving equal time, there is also an interview with Chad Hurley and Steven Chen, the founders of Google’s YouTube.

Summing it up, Viacom believes that YouTube is violating the DMCA because YouTube is a media company that has knowledge of the copyright violations. The DMCA is written to protect companies involved in the building blocks of the internet such as routing, ISPs, etc. not media companies such as Google and YouTube. Mr. Dauman also states that his company, Viacom was spending large sums of money on a team that was manually going through YouTube (and probably other sites as well) looking for Viacom content which was posted/uploaded to the site by users in violation of the copyright. Those costs in addition to the money that YouTube was making on the ads shown on the site are real money that is coming out of the revenue stream of Viacom.

Google and YouTube on the other hand argue that the DMCA applies to them and that they complied with the law because when notified by copyright holders, they removed the copyrighted materials. Eric Schmidt goes so far as to state that the dispute is about “whether there is a shared responsibility around the take down provision or not.”

The folks at Google understand and clearly state that this is about money… but they want to make the money at someone else’s expense. The DMCA is going to be tested here and hopefully through case law, clarified as to exactly what constitutes a hosted site allowed to store copyrighted materials and what is a media site. Common sense would say that if a site is making money from unlicensed copyrighted content, they should have to pay for it or remove it themselves. In our opinion, it does not make sense to allow sites and companies to earn revenue on copyrighted content for which they don’t own or license the right to show.

Your local cable access station cannot let you sign up for free air time and then show an episode of the Colbert Report you recorded at home, why should the internet be any different? As companies such as Apple and Microsoft work to bring television to the web and help define the industry, sites allowing video uploads should be held to the same standards as local cable access television stations. The principles are the same. It will be very interesting to see how the courts rule. Of course, given the money involved, there will most likely be a deal announced in the next couple of months between Viacom and Google so the law will not be examined as it should.

In terms of the uncertainty right now over the DMCA and online user generated content, we advise our clients to scan their site and remove blatant copyrighted materials uploaded as they find them. For example, message board posts that contain images from Warner Brothers or Disney cartoons are edited. Videos and photos from television shows or movies are edited or removed. When community managers make a “best effort” to remove copyrighted materials, the firm has a defense against the inevitable lawsuit. With copyright confusion, the best defense is a good offense.

Want to learn more about protecting your company and keeping your members happy? Contact us, we’d be happy to discuss the successful best practices we’ve developed in this area.

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