Are you the Master of Your Domain ?

You register a domain name. Pay your money for the domain. Set it up to be hosted somewhere. Its your domain. You decide what is to go on the website. But are you the “Master of Your Domain” ?

As with Seinfeld, there is a contest going on right now in the videohosting world between the forces of temptation; In this case, the temptation of allowing others to post any and all content, copyrighted or not, on your domain, ala Youtube; and the forces of copyright law, taking complete control of your domain and only allowing content that has been reviewed and approved, ala Revver.com .

Put another way, Youtube puts up a notice to all of those who post to its domain….”Please dont do it. We are telling you not to do it. If someone catches you doing it, you will be embarassed and they will have the right to come after you. But, wink wink, we all can have a good time in the meantime. Flog away at copyright laws”.

Youtube lawyers are saying that as long as their users are ignoring copyright law, its not Youtube’s fault. Youtube lawyers do not feel that Youtube is the master of their own domain. But thats ok because the DMCA laws say that if you give up control of your own domain, you dont have to worry about copyright laws.

Revver on the other hand has chosen to be a master of its own domain. It will post no video it doesnt approve. It is a master of its own domain.

The importance of being the “Master of Your Domain” is soon to become not only a Seinfeld reference, but a legal one as well.

Youtube hides behind the DMCA Safe Harbor Laws, in particular this part:

(c) Information Residing on Systems or Networks At Direction of Users.- (1) In general.- A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider-

(A)
(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

First of all, having followed the negotiations for the Safe Harbor Provisions when they were happening, I can assure you that based on the discussions then, videohosting sites that shared files publicly were not considered “service providers”. Service Providers were defined as companies like ISPs that hosted files they knew nothing about, that the users had full discretion over, and did not reside on a website owned by the ISPS (which would give the ISP discretion on how the files were delivered ie Flash/progressive download, as opposed to the user defining how and to where.). So the fact that videohosting sites are not Service Providers could exclude them from Safe Harbor Provisions by definition. But that takes the fun out of this blog post, so lets be like Google and pretend its not an issue.

Like the contest in Seinfeld, Google and Youtube think that if the users tell them they didnt do it, then it must be true, they didnt do it. They want to ignore all evidence to the contrary. Kind of like what 12 year old boys hope their moms do when they do laundry… to continue the Seinfeld reference.:)

The way i read the Safe Harbor Provisions, the part that says:
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent;

is the Youtube killer. If you get a takedown notice from one source for 29,543 videos, you are aware of facts or circumstances from which infringing activity is apparent.

If you are Google, you can easily set up a search like this , which is basically using their features <site:youtube.com “This video has been removed” > to see that you are getting so many takedown notices per day, that maybe there is quite a bit of infringing going on.

Then there is the “Does Not Receive Financial Benefit directly attributable to the infringing activity”. Well when you look at the links for content taken down, glance up at the banner ad on the page. Thats financial benefit.

Now Google of course will and can argue all day long that they didnt know about any given video and the fact that it was infringing. They will argue on a per video basis. They didnt know. If someone knows and they tell Google or Youtube, they take it down. All within the letter of the law.

Whats interesting in the meantime before we get to the big lawsuit that will come, is that in anecdotal testing, obviously infringing videos that were uploaded to Google were rejected as not being elgible to be uploaded. The same video uploaded to Youtube , had no problem being uploaded and hosted. This was in the past several days.

It looks like Google is hedging their bet on the Safe Harbor Provisions despite saying otherwise on their conference call.

Whether they are or not, my bet is that when the Safe Harbor Provisions are tested in court, and they will be, the decision will come down to this. If you own a domain name, you are responsible for it and everything copyright related that is posted and happens on it. You MUST be the master of your own domain. If you are not able to be, you will be liable to any infringing acts on the domains you own.

Thats what I think the courts will decide.

Does this make Youtube the Kramer of videohosting sites ??

33 thoughts on “Are you the Master of Your Domain ?

  1. I realize I\’m commenting on this rather old blog, however I\’m doing some research for an IP class. Everyone\’s ideas is built on somebody elses… As Neil Peart said \”sparks ignite and spread new information\”, but if we\’re all afraid of igniting each other for fear of a C&D letter, then we are not better off as a society.

    I think that the folks on Capitol Hill should focus on real problems, rather than creating law after law, day after day…

    It\’s so stifling!

    Comment by Brian Carr -

  2. Yeah Mark, it is starting to look more like jealousy instead of concern for copyright holders. Your premise that YouTube was set up for illegal use is faulty. While YOU may only view illegal content on these sites, the funny stuff is really the user created stuff. And we know that YouTube et al will/do directly compete with television (and HDnet) for the future of viewing habits of consumers. Hit the hoops for a while.

    Comment by Dempsey -

  3. I own this domain aadress:P

    http://www.infotek.talker.ee/

    Comment by Infotek -

  4. You and Chris Moore just bought the rights to the Aussie Series (Mile High 2003-2005) Sorry for the repost.

    But I really want some information on this movie. Please don’t turn it into Pigs on a Plane.

    Thanks.

    Comment by Jimmy Stanfield -

  5. Actually #19- Jake, i think that’s a bad analogy. I would think a better one would be one where someone leans out of the passenger side window with a baseball bat and slugs the pedestrian. Is the driver responsible? The driver did not provide the bat, however the driver did provide the vehicle and placed the vehicle in a place that the passenger could do damage to the pedestrian. How much responsibility does the driver actually have in the wrongdoing is the question here. If you are going to drive people around in your car, you can’t have them hanging out the windows swinging bats at people.

    In your analogy the individual had purchased everything already meaning everything was his. He hit a person in his car after drinking his alcohol. I’d say that’s pretty much on him. Kind of like Google purchasing a domain and now owns said domain and is now responsible for it’s domain’s actions/content. Wait a sec, did someone say that already?

    Comment by Jeff -

  6. Thanks, Mark, for outlining yet another thing we need to think about as we launch the Indianapolis Colts social networking site. http://www.colts.com/modules/fannetwork.cfm

    And while we’re on the subject of domains, we got “Go dadied” last week. Ouch!

    Comment by Pat Coyle -

  7. Mark, Great blog and straight-forward comments! I am really becoming a fan. You obviously must be ready for Mavs season, though, from the amount of time and words you are putting into this (very interesting) GoogTube issue. Note: Being from Cleveland, I am not, however, a Mavs fan, except as a distant second to the Cavs. Go Cavs!

    Comment by Brent Moll -

  8. While I agree that posting copyrighted content is illegal and should be stopped, my main aggrivation is that YouTube has profited greatly, ala $1.65 billion dollars off of hosting this content and os breaking the law. If I did this, I would have been sued and my domain shut down long ago. I agree, we all should be masters of our domain.

    I also agree, I think it’s time to move on to the next topic.

    Comment by David Ward -

  9. I run a basketball video website (http://www.hoopsdojo.com/) that is based on the whole social network that lets Users contribute. I actually use YouTube, Google Video, and all the other video sites for my content.

    I have some moderators who check the site every couple of days and remove any videos that are deemed inappropriate. Based on your post, do you think I should rather post the videos after they have been verified? It seems if I do it this way I will not get as much contribution to the site as Users want to see their videos on instantly.

    Comment by Darren -

  10. Just say Good Luck to the guys who sold to Google. Short Google’s stock and shut up about it.. All you are doing now is crying foul to a business that you were not part of.

    Move on.

    Comment by PSC -

  11. The lawyers pulled a good point, Blame it on the users, hahaha

    Cool post !!!

    Comment by Lawyer -

  12. Just curious as to whether you see YouTube as different than eBay in terms of copyrighted content. So far eBay has survived by just having a takedown notice mechanism for copyrighted materials, and they aren’t getting sued left and right as far as I know. Their case would be even more stringent as they are making $ off copyrighted materials that get sold through the site. YouTube is just a $ sink. Or maybe I’m wrong an eBay has content police, may have changed since I last looked at the issue a few years ago.

    Comment by Todd -

  13. #19 Oh Jake that’s a good point, I like the way you think- this has been my point exactly who is at fault the site who in no way says yes upload copyrighted material, or the person who is doing it.

    You want to blame youtube but it’s not there fault they really in no way said “sure go ahead and put up copyrighted stuff we don’t care.” They never said that and they never gave the impression that it was supported.

    if youtube is at fault then what about songbird.. http://www.songbirdnest.com/screencast/ – watch the screencast on the front page… THIS IS WHERE THE PARTY GETS INTERESTING.- this is from the same people who make firefox…

    – This app let’s you download tracks from a webpage into your library and it has a search function. If this isnt like Napster I dont know what is Now here is where this discussion gets good. REAL GOOD.

    Here is my example of how a good thing turns bad and its in no way the intention of the maker.

    Whats to stop someone from putting up a web blog (that in no way ties back to the user) with copyrighted tracks and letting the users of songbird just download those tracks to there hard drive to listen to however they please. and transfer to there Zune & ipods for free More music then I would ever buy, and all free.

    Now you begin to see how this is a product that in no way did the makers intend for it to be illegal but the same way a person takes a gun to the bank to make a withdrawal, I cant stop them. The same way YouTube cant stop thousands upon thousands of people from uploading copyrighted material. But they can take down the content once I receive a complaint isnt that being a Masters of their Domain

    The QUESTION is; who is at fault the user or the system?

    If it’s not the user I guess Mozilla should prepare for the lawsuits to hit the doors soon.

    Comment by Crazyglues -

  14. For the sake of an online community that thinks the internet is better with a YouTube than without, I hope you are wrong about this one Mark.

    Comment by Antonio Howell -

  15. As per your argument, if a drunken driver hits a pedestrian, the victim can now sue the the liquor company for producing alcohol, the car company for producing the car and government for building the road, since each of them must be “Master of their Domain”.

    Comment by Jake -

  16. Running that same query on Yahoo shows much more interesting results…

    http://search.yahoo.com/search?p=site%3Ayoutube.com+%22This+video+has+been+removed%22&fr=yfp-t-501&toggle=1&cop=mss&ei=UTF-8

    Comment by Mike -

  17. I see my last commet was taken down… I thought that was funny… but I guess you can’t take a joke my bad…

    anyway #14. Gerry you do rasie a good point – the fact that Napster was just a search engine, and not actually hosting the files is a really good point because youtube actually host the copyrighted material. it does make there infraction much worst in that sense, but seeing how they have worked out some deals with some of the music companies Im sure they will be able to get around the whole problem.

    Especially since they are now giving the names of the people who uploaded the copyrighted material right to the companies so they can sue them directly.

    Interesting move on you tubes part, shows that they are not supporting the copyright problems as Napster was, in-fact Napster went as far as to say they could not track down the people putting up the illegal content.

    So for GooTube Im sure they will be able to turn the business into something that works within the law, and is able to function as a profitable Legal video uploading website.

    Comment by Crazyglues -

  18. aleem. good point. it also brings up the possibility of a cottage industry arising: companies hired to comb through the youtube and others for infringing material. Outsource internationally, and exchange rates make that a steal.

    that seems most likely as I’m still not certain that it’s in google’s interest to be fastidious about removing copyrighted content once alerted to its presence.

    Comment by blyx -

  19. Great point man.

    Comment by Clintus -

  20. Although I think he’s beating a dead horse, I completely agree with Mark. Also, I think comparing YouTube to Napster is a nearly perfect comparison. However, YouTube is WORSE OFF because they actually host the content where Napster was just a search engine.

    Comment by Gerry -

  21. This is not an impossible problem–it’s tractable.

    One idea might be for Google to provide administrative accounts to the large media companies (and complying primarily with the major copyright holders is the key here) to remove infringing content themselves or possibly build a community moderation system. The latter will probably not work due to conflict of interestthe community finds value in free copyrighted content but the design could be modified to reward the community of moderators. YouTube could also hire auditors working around the clock to comply with the smaller players though Google is a strong believer of autonomous, scalable systems so its unlikely they will take this route in the longer term.

    Comment by Aleem -

  22. Well, I can see more sues against Google in near future. Google wants to be everywhere. Soon we will see underpants from G. lol

    Comment by Dsw -

  23. There’s a saying that hollywood’s in the business of making movies with other people’s money.

    i’d say google is in the same business, and this is an interesting experiment to test the parameters of the law in order to monetize their ability to aggregate accordingly.

    google has had an interesting run. they’ve kept a lot of companies at bay by being very aggressive in their forays into ancillary business opportunities. This has successfully kept a lot of people from coming at googles’ bread and butter – search. Frankly, I feel that this is going to resolve itself in favor of the content companies. However, I am certain that dark fiber/search google has gotten big enough to be threatening by virtue of size alone.

    I’m actually frankly surprised that cable providers haven’t started offering browser service through their cable boxes. It would be nothing for a cable provider to attach a little qwerty keypad slidy thing on a remote and allow a browser on their cable box – through their own cable box. If there is one thing that people do more that surf it’s watch television.

    I feel that real competition from google is going to come from companies such as these – already positioned in the home and wired up to deliver a product on a dedicated pipeline.

    I’m frankly interested about how cable and telecoms work this out because they have something google does not – dedicated wiring into the home and complete control over what shoots down it. google – like youtube, still requires active mindshare.

    A little offtopic – I know. This is a moot point though – the content providers will win because they are right. As of today, profiting off another’s content is not legal. This significantly devalues youtube, because even with these so called content deals, the stuff that drew youtube users is not stuff that content providers will want to give away. It is academic that youtube was not worth more than myspace. This purchase was purely defensive – a bit of a red herring. It’s causing a whole bunch of other comapnies to scramble in a defensive fashion while google quietly assembles docs and spreadsheets, mail, IM, picasa, into a useful and usable internet operating system.

    This is how I feel about my gmail. It’s so fucking useful that it would actually be a big deal for me to get off it. I’ve got so much stuff there that it’s a hassle to use another webmail. Packrats can’t be mobile – and google wants us to be packrats.

    By encouraging people not to throwing anything digital away – they are enforcing psychological ties with the place this stuff is stored. “Remember that flag football game?” “Yeah, it’s on youtube!” “Let’s go watch it! I totally owned you!” et al.

    My mom said that people like you most of the time when they don’t respect you or are unaware of your full faculty. For this, it made sense to keep your best assets to yourself as to be difficult to assess. Frankly, google is not longer likeable to me. they are smart enough to be very scary.

    Comment by blyx -

  24. It has begun… indeed

    http://news.com.com/YouTubes+no+friend+to+copyright+violators/2100-1030_3-6128252.html?tag=nefd.top

    Comment by Crazyglues -

  25. It has begun:

    http://www.marketwatch.com/news/story/DLVwwwzSpngzgZcnXTgjKrc?siteid=mktw&dist=morenews

    Comment by Justjosh -

  26. You’ve covered this topic before. Look, if someone wants to sue, they’ll sue anyone involved in the posting of copyrighted material, but focus on the person with the deepest pockets.

    Comment by wailea -

  27. It doesn’t work, Mark. If you go down this path, you’ll be back to lawsuits against ISP’s because something illicit happened on their e-mail service.

    Google is not Napster. They don’t try to actively encourage illegal behaviour, and this is going to work out all right in the end, while still be able to preserve a free and open Internet.

    Comment by Corby -

  28. Mark,

    You’ve clearly blown past playing devil’s advocate on this subject right into outright envious hostility towards Youtube and Google.

    Comment by Gary -

  29. While I agree with Mark from a pure legal standpoint. The realities of the Internet and lessons learned just a few years ago will drive the outcome of what’s happening with YouTube now.

    I’m sure we all remember Napster and what happened with that. The industry came calling and was successful in forcing Napster to monitor and filter their content. But what was the outocme to the Music Industry/Companies? They didn’t solve the problem but in really made it worse. Why? Simple, they didn’t stop or even slow down the trend but by shutting napster down they made it more difficult to control the market and monetize the opportunity. They spread consumers across numerous knock-off sites the moment Napster got shut down.

    The beauty of the Internet is it truly is for rebels, and it creates trends that are hard to stop through simple legal actions. Now what if the music industry had said, wait lets consider the ramifications of what we are about to do… we shut napster down, 15 competing sites pop-up spreading the user base and we accomplish what?? What if they had taken a different approach from day one. What if they had said, lets keep the customer base centralized on Napster and find a way to leverage that base in the best possible way. We recognize we can’t stop an Internet trend. Lets be as opportunistic as possible recognizing we have to roll with times. All businesses must face the realities as their industry matures, your margins will be squeezed by competion and new approaches, and as much as you might want to fight it, you’ll fail in the end if you don’t figure out how to leverage it.

    I believe the same thing will happen here, the content providers if smart will have learned a valuable lesson from the Napster scenario. If you pursue a solution from a legal standpoint you will simply create more sites and a scattered market. But if you find a way to work with YouTube to make $$$, you will optimize a situation which perhaps isn’t ideal, but will only get worse if you simply try to kill it through legal action.

    The Internet truly is the home of the Maverick.

    Gurerrilla Marketer & Internet Entrepreneur

    Comment by Jlittlemo -

  30. Mark, how would you draw a bright line distinction between Youtube’s user-uploaded content and blogs hosted on blogspot, livejournal, etc.? How about copyrighted photos posted on a user-driven message board? And copyrighted comments posted on a blog such as yours? And what about a viral video hosted on a user-controlled, Yahoo! owned geocities domain? Copyrighted photos on Flickr or Imagebucket?

    It would be sad indeed if the lawsuits intending to kill Youtube also killed wikis, blog hosting sites, image hosting sites, message boards, hosted chat roms, etc. After all, there has been a lot of hubbub (mostly hype) about the potential of user-generated content.

    The 9th circuit ruled a while back (2003, I believe) that site owners were not liable for the actions of their users in the context of defamation. I’m not a lawyer, so I don’t know what they would say about the actions of their users in the context of copyright infringement, but it seems clear that most courts have ruled that similar statutes gave broad liability protections to owners of “interactive computer services” for the actions of their users.

    Comment by Shane -

  31. Mark

    You’re beginning to sound like an old woman.

    Next topic please….

    Comment by trekr5 -

  32. Hopefully their search for illegal content will end the marking of legal content as illegal. Months ago, I had two completely legal videos removed because they happened to feature individuals that certainly organizations had trouble with me seeing in public (professional wrestlers in my local tavern, to be precise). I was informed my camera phone-recorded video was in violation of the DMCA and the videos were removed. What a joke.

    Now, the kids who post entire movies on there in 20 chunks, that’s the sort of thing that should have never been there to begin with.

    Comment by tim burke -

  33. I think the (B) clause would put google in the most danger. Especially if premiums are charged for adspace attached to videos with higher traffic. Suddenly revenue is increased as a result of viewing copyrighted material.

    Comment by Adan Gutierrez -

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