They cant have it both ways.
gonna be interesting !
NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
Francis C.J. Pizzulli (State Bar No. 67151)
718 Wilshire Blvd.
Santa Monica, CA 90401
Telephone: (310) 451-8020
Fax: (310) 458-6156
E-mail: pizzullilaw@yahoo.com
Attorney for Plaintiff
Robert Tur d/b/a Los Angeles News Service
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ROBERT TUR d/b/a LOS ANGELES
NEWS SERVICE,
Plaintiff,
v.
YOUTUBE, INC.,
Defendant.
_________________________________
Case No. CV 06-4436-FMC (AJWx)
NOTICE OF MOTION AND MOTION
FOR SUMMARY ADJUDICATION
OF DEFENDANT’S FIRST
AFFIRMATIVE DEFENSE
OF DMCA SAFE HARBOR;
MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF
ROBERT F. TUR AND
ACCOMPANYING EXHIBITS
Fed. R. Civ. P. 56
Date of hearing: December 4, 2006
Time: 10:00 a.m.
Court: The Honorable
Florence-Marie
Cooper
2
NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
PLEASE TAKE NOTICE that on December 4, 2006 at 10:00 a.m. or as
soon thereafter as counsel may be heard, Plaintiff Robert Tur will move the Court
for a partial summary judgment and/or, in the alternative, an order to specify
material facts that appear without substantial controversy in connection with
Defendant YouTube’s First [Affirmative] Defense (DMCA Safe Harbor). In
particular, Plaintiff Tur seeks an order specifying that, contrary to the requirement
of 17 U.S.C. §512(c)(1)(A), YouTube does receive a financial benefit directly
attributable to the infringing activity alleged herein, in a case in which the service
provider has the right and ability to control such activity, and therefore, that
Defendant YouTube is barred from relying upon the DMCA safe harbor in this
case.
This motion is made following the conference of counsel pursuant to L.R. 7-
3, which took place on October ___, 2006.
This motion is based upon the attached Memorandum of Points and
Authorities, the Declaration of Robert Tur and accompanying exhibits, and
pleadings and papers on file herein, along with the accompanying Statement of
Uncontroverted Facts and Conclusions of Law, Fed. R. Civ. P. 56(d), in Support of
Plaintiff’s Motion for Summary Adjudication of Defendant’s First Affirmative
Defense of DMCA Safe Harbor; and [Proposed] Order Specifying Material Facts
3
NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
1
Without Substantial Controversy and Conclusion of Law Re: First Defense of
DMCA Safe Harbor.
Dated: November ___, 2006
_____________________________
Francis C. Pizzulli
Attorney for Plaintiff Robert Tur,
d/b/a Los Angeles News Service
4
NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
There can be no dispute that serious and repetitive infringements of Tur’s
copyrighted works are displayed on Defendant’s website, YouTube.com, on a daily
basis. As is evident from YouTube’s publicity campaign, directed against its
reputation as an, e.g., “bootleg-heavy site,”1 YouTube’s first and paramount
defense is the safe harbor provided by 17 U.S.C. §512(c)(1) of the Digital
Millennium Copyright Act (“DMCA”), more particularly, the Online Copyright
Infringement Liability Limitation Act (“OCILLA”) portion of the DMCA. Despite
the potential complexities of this case, however, the First [Affirmative] Defense of
DMCA Safe Harbor is relatively simple to adjudicate. That is because one of the
three essential conditions for a putative Internet service provider to escape direct,
contributory or vicarious liability for undisputed copyright infringement, occurring
on its website cannot be satisfied as a matter of undisputed fact. The source of the
undisputed facts is party admissions derived from YouTube’s very own website.
Adjudication of this motion should therefore streamline discovery and
further proceedings in this case.
1 Los Angeles Times, ___ [date], ___ [page], Fed. Evid. R. ____.
5
NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
1
28
SUMMARY
The safe harbor immunity provided by 17 U.S.C. §512(c)(1) of OCILLA is
not met by YouTube with respect to the infringements of Tur’s works appearing on
YouTube.com because YouTube receives a financial benefit in the form of banner
advertising directly attributable to the infringing video clips. See, e.g., Exhibits
___.
BACKGROUND
Plaintiff Robert Tur is a pioneering television journalist who, in connection
with his Los Angeles News Service, has obtained numerous copyright registrations
for segments of newsworthy videotape footage.
Plaintiff’s tape library of over 10,000 hours includes works such as Tur’s
first-on-the-scene tracking of the ignominious 1994 freeway chase of O.J. Simpson
(PA-733-108). In 1992, Tur reported exclusively over the intersection of Florence
and Normandie the shocking attack upon Reginald Denny at the start of the 1992
Los Angeles riots (PA-576-704).
Over the past two decades, Tur has helped the copyright owners of
newsworthy works generally in successfully litigating limitations to the assertion
of “fair use” as an excuse for pirating news organizations’ copyrights. See, e.g.,
Los Angeles News Service v. CBS Broadcasting, Inc., 305 F.3d 924 (9th Cir. 2002);
6
NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
28
Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997);
Los Angeles News Service v. Tullo, 973 F.2d 791 (9th Cir. 1992).
Tur filed this complaint well before any news of a pending $1.6 billion
acquisition of Defendant YouTube by Google, Inc. Rather, in light of MGM, Inc.
v. Grokster Ltd., (___ U.S. ___, 125 S. Ct. 2764 (2005)), Tur was called upon to
file this complaint, a la Cincinnatus, to address a new threat to news media
copyrights.
YouTube operates a web site where users may post audiovisual content for
viewing via “streaming” through the YouTube website. YouTube Answer, ¶14.
Defendant YouTube was started in approximately February, 2005, and its service
was publicly launched December 15, 2005. YouTube has grown into one of the
most popular video services on the Internet. Approximately 65,000 clips are
uploaded to the YouTube service per day, with more than 100 million views per
day of videos on YouTube.com. Id., ¶¶17-18 and 35.
Tur’s copyrighted works are routinely infringed by users of the YouTube
service, and thereby with the direct, contributory and/or vicarious liability of
YouTube. See Tur Declaration.
YouTube attempts to immunize itself from liability under MGM, Inc. v.
Grokster Ltd., supra, principally by relying upon 17 U.S.C. §512(c)(1).
7
NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
1
28
YOUTUBE DOES NOT QUALIFY FOR THE DMCA/OCILLA SAFE
HARBOR, AS A MATTER OF LAW, BECAUSE OF THE DIRECT
ADVERTISING BENEFITS IT OBTAINS FROM
THE INFRINGEMENTS OF TUR’S WORKS.
YouTube’s first defense of DMC/OCILLA safe harbor is based upon
§512(c)(1), as follows:(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.
8
NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
1
28
YouTube, however, cannot satisfy the necessary condition of §512(c)(1)(b).
As is manifest in Exhibit 1-___ attached hereto, YouTube applies banner
advertising to the locations on its website where infringing copies of Tur’s works
have been uploaded and are displayed. In addition, YouTube advertises in
juxtaposition to the infringing clips of Tur’s works, promotions for other
advertises in juxtaposition to the infringing clips of Tur’s works, promotions for
other YouTube site locations, as well as promoting its branding. See Tur Decl. and
exhibits.
YouTube admits in its answer what is obvious from the attached screencaptured
exhibits, i.e., that it sells advertising on its Website. Answer, ¶20. See
also, e.g., Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828, 858 (C.D. Cal. 2006)
(broad definition of “direct financial benefit” would encompass even a “future
hope to ‘monetize,’ citing 4 Nimmer on Copyright § 12.04[A][1] (2005)
(commenting on A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir.
2001))).
Further, YouTube further admits that, in effect, that it “has the right and
ability to control such [infringing] activity”, within the meaning of §512(c)(1)(B)
by virtue of its online User Agreement. In relevant part, the User Agreement,
which is entered into electronically by each user of YouTube, grants and entitles
YouTube as follows:
9
NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
1
28
. . . .hereby grant[s] YouTube a worldwide, non-exclusive,
royalty-free, sublicenseable and transferable license to use, reproduce,
distribute, prepare derivative works of, display, and perform the User
Submissions in connection with the YouTube Website and YouTube’s
(and its successor’s) business, including without limitation for
promoting and redistributing part or all of the YouTube Website (and
derivative works thereof) in any media formats and through any
media channels. [You] also hereby grant each user of the YouTube
Website a non-exclusive license to access [your] User Submissions
through the Website, and to use, reproduce, distribute, prepare
derivative works of, display and perform such User Submissions as
permitted through the functionality of the Website and under these
Terms of Service….
Tur Decl., ¶ 7.
Thus, given YouTube’s inability to comply with §512(c)(1)(B),
YouTube should be precluded from relying on a safe harbor defense. Such
an adjudication, pursuant to Fed. R. Civ. P. 56(d), will substantially
streamline discovery, pretrial, and trial proceedings in this case. For
example, partial summary judgment/summary adjudication of the First
Defense will obviate or truncate substantial discovery and issues otherwise
pertinent to the safe harbor defense, such as:
1. Whether YouTube qualifies as a §512(k) service provider;
2. The timing and/or extent of the actual knowledge of YouTube
that the registered works were being infringed;
3. Whether and when, and to what extent, YouTube was aware of
the facts or circumstances from which infringing was or should be apparent;
10
NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
1
28
4. Whether and when, and to what extent, upon obtaining such
knowledge or awareness of the infringing activity, YouTube has acted
expeditiously to remove or disable access to infringing material;
5. Whether an alleged “take-down procedure”, in the context of
YouTube’s business-operational model, qualifies as a meaningful take-down
of infringing material if, as with Tur’s notice of infringements in his
complaint, the alleged take-down is immediately followed by an even
greater number of infringing uploads of the cited work on a continuing
basis.
6. Whether YouTube qualifies as a storage-at-the-direction-ofusers
service provider, within the meaning of §512(c), where the YouTube
service manipulates, categorizes, sorts, and promotes the audiovisual data
uploaded by its users, as well as to link and embed video clips with other
sites.
Thus, it would be an appropriate use of Rule 56(d) to adjudicate the
First Defense. As explained in Boston Scientific Corp. v. B. Cordis Corp.,
422 F. Supp. 2d 1102, 1106 (N.D. Cal. 2006):
Plaintiffs’ motions do not dispose of the entire case – they
merely prevent Cordis from asserting anticipation and priority as
affirmative defenses. Accordingly, the Court regards the motions as
motions for partial summary judgment.
11
NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
1
28
Although motions for partial summary judgment are common,
Rule 56 of the Federal Rules of Civil Procedure, which governs
summary judgment, does not contain an explicit procedure entitled
“partial summary judgment.” However, inherent in Rule 56 is
authority of the District Court to grant partial summary judgment, i.e.,
on a particular claim or a particular affirmative defense, even if doing
so would leave other triable issues.
Therefore, the motion should be granted.
Dated: November ___, 2006 Respectfully submitted,
_____________________________
Francis C.J. Pizzulli
Attorney for Plaintiff Robert Tur
d/b/a Los Angeles News Service
12
NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
1
28
DECLARATION OF ROBERT TUR
I, Robert Tur, declare as follows:
1. I [along with Marika ________ and __________] am an owner of the
Los Angeles News Service (“LANS”).
2. LANS is a duly accredited news gathering and reporting organization,
which produces video and audio tape recordings of newsworthy events.
3. LANS both operates and contracts to other news organizations and
licenses and sells news video, videotapes, photographs, and other products used by
other news operations for all media, including television, cable, motion picture,
Internet and print media.
4. I am the owner of, inter alia, the following registered copyrighted
works:
a. PA-576-702: “Beating of man in brown hatchback with
rescue;”
b. PA-576-703: “Beating of man in white panel truck;”
c. PA-839-603: “Earthquake;”
d. PA-576-704: “Beating of Reginald Denny”, and
e. PA-862-544: “North Hollywood shootout.”
13
NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
1
28
Each of these five works (collectively, “Infringed Works-A”) has b
een uploaded
on the YouTube website, YouTube.com, both before the filing of the complaint in
this case, after service of the complaint on YouTube, and presently.
5. At no time have I given an assignment, license, or permission of any
kind to YouTube or to any of its users who have uploaded my copyrighted works
onto YouTube.com.
6. A representative set of infringements currently ongoing of my
Infringed Works-A include Exhibits 1-___, attached hereto. These exhibits are
true and correct copies of downloads of YouTube.com taken on ________, 2006.
Each of them shows a frame from one of my Infringed Works A juxtaposed against
the following types of advertising: (a) banner advertising – such as for NetFlix;
(b) promotion of other YouTube.com videos (on the right side of the screen
captured); (c) promotion/branding of the YouTube.com logo and name (at the
upper part of the screen captured).
7. At the YouTube.com website is the User Agreement, which must
automatically be accepted electronically by each user. Section 5.B of the User
Agreement states in relevant part:
…you hereby grant YouTube a worldwide, non-exclusive,
royalty-free, sublicenseable and transferable license to use, reproduce,
distribute, prepare derivative works of, display, and perform the User
Submissions in connection with the YouTube Website and YouTube’s
(and its successor’s) business, including without limitation for
promoting and redistributing part or all of the YouTube Website (and
14
NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
1
28
derivative works thereof) in any media formats and through any media
channels. You also hereby grant each user of the YouTube Website a
non-exclusive license to access your User Submissions through the
Website, and to use, reproduce, distribute, prepare derivative works of,
display and perform such User Submissions as permitted through the
functionality of the Website and under these Terms of Service….
The foregoing facts are within my personal knowledge, and I could
competently testify to them.
I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct.
Executed this 13th day of November, 2006 at Santa Monica, California.
_______________________
Robert Tur
15
NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
1
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over
the age of 18 and not a party to the within action; my business address Boulevard, Santa Monica, California 90401.
On November 13, 2006, I served the foregoing document described as
NOTICE OF MOTION AND MOTION FOR SUMMARY
ADJUDICATION OF DEFENDANT’S FIRST AFFIRMATIVE
DEFENSE OF DMCA SAFE HARBOR; MEMORANDUM OF
-POINTS AND AUTHORITIES; DECLARATION OF ROBERT TUR
ANDACCOMPANYING EXHIBITS FED. R. CIV. P. 56
on the interested parties in this action by placing a true copy thereof, enclosed in a
sealed envelope, addressed as follows:
BY U.S. MAIL I placed such envelope, with postage fully prepaid thereon,
in the United States mail at Santa Monica, California.
X BY PERSONAL SERVICE / FAX. By stipulation of counsel, papers in
connection with this motion are deemed personally served upon Defendant
YouTube, Inc. on the day of fax transmission thereof prior to 5 p.m. PST.
Claire E. Goldstein
Weil, Gotshal & Manges LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065
Fax: (650) 802-3100
I declare under penalty of perjury under the laws of the State of California
that the above is true and correct and that this declaration was executed on
November 13, 2006 at Santa Monica, California.
__________________________
S. Hathaway
really good sharing, thanks
there are a lot of models for mobile phones
Comment by Cep Telefonu -
Question: Why can I find information and video of the incomplete video of the Rodney King video but I can not find but one video of the Reginald Denny beating?
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Comment by Smart phone systems ltd -
I guess today is the day. The motion for hearing says Dec.4th. Anyone know if the hearing will actually be heard today?
Comment by Chris D -
This is a TERRIBLE motion, Mr. Cuban. Plaintiff claims that “YouTube further admits that, in effect, that is “has the right and ability to control such infringing activity,” (a requirement when there is a claim of direct financial gain under DMCA). P then goes on to put the pertinent part of YouTube’s Terms of Use, but NEVER applies the Terms to the “right and ability . . .”. The only right reserved by YouTube is the right to reproduce once someone puts something onto their server. (Basically, if you leave it in our room, we can show it to people). YouTube reserves NO right to actually do anything to the original user posting such as remove it, without a copyright holder complaining (which follows DMCA 512 c(1)(C). Counsel is simply trying to let the judge do his own inferring, without actually using the Terms of Use to help his point.
Comment by HofstraRob -
Remember that Google is behind Youtube now and these guys have been scanning books in libraries. Hitler’s burning of books pales in comparison.
Comment by Vidizer -
Wall Street Journal is reporting that Universal has filed suit against MySpace and are using the transcoding issue that I mentioned in my previous post as evidence that MySpace is not merely a host and is directly involved in the infringing activity. Therefore logic follows that MySpace does not fall under the DMCA Safe Harbor provisions.
If a precedent is set in this case using this argument, it will be the nail in the coffin for services like YouTube. Universal has a licensing agreement with YouTube, but there are thousands of other copyright holders out there, like Tur, which would have a field day. I personally believe that the cases against these services are more clear cut than Napster and would be surprised if we don’t see rulings which at least force them to change the way they operate.
Comment by Drama 2.0 -
This is pretty interesting. It seems like we keep coming back to the same issues on the internet, just reincarnated.
I think more regulation on the internet will be good but suck at the same time. Damn, I want it both ways too. Also, does anybody have any cake?
Comment by Brian Laesch -
Mark, you are obviously not taking the hot-air tube out of your ear at night like the doc told you by continuing this witch hunt.
Google’s bigger than anything you’ve ever done and you can’t stand it. You are no better than the little kid that stands behind the other bully, sneaking him Oreo to beat up the one you ticked off.
You slight Google because of HDNET and what it means to your future, but deep down inside you can’t stand that Google bought Youtube. I know the Mavericks and HDNET are your lifeblood and you’ve gotta protect it, but sometimes you gotta let them fight on their own.
At the end of the day what you really want is a police society that forces people to watch HDNET and Mavericks all day. You won’t let your own products thrive for themselves, it’s just as pitiful as suing 12 year olds.
Comment by phreaki -
I can see how the bigger media companies that produce tv,film etc may look to jump into bed with YouTube to get the media to the greatest audience. Obviously a release deal would need to be in place, as well as a revenue model.
But I don’t see any benefit to a Robert Tur if his media reaches the greatest audience (even with a favorable revenue model in place) because I am sure that the value of his patented material is reduced as it becomes less scarce so to speak.
And if they cant get to the posters of the videos then YouTube looks to be in a bit of strife. Particularly as they generate revenue from the advertising associated with the videos .. and if they dont have advertising Google may have been somewhat better served flushing their money down the toilet.
Comment by Koorlle -
Unlicensed and individual privately licensed content is what drove YouTube’s success. It started as a place for people to be a) discovered, or b) share a video with friends, family, social group, etc.
Even without SNL skits, YouTube filled a niche and I think they’ll still have an audience. Combine YouTube with a MySpace and I think you’ve got the perfect social portal. I figure Google will go that route. They ventured into Google Groups (*yawn*), but social content (blogs, vid clips, etc…) are unique content and, for commercial use, Google could generate tremendous marketing profiles, product analysis, etc.
As much as I’m usually aligned with Cuban on most things … I think GooTube has merit. Albeit with a huge price tag!
Rob
Comment by Rob Mullins -
Mark hasn’t mentioned, that when a video is loaded on You Tube, there is the “Do not upload copyrighted material” warning. What Mark is doing seems like robbery, plain and simple. You Tube has gone out of it’s way to work all the wrinkles out. Mark’s actions will insure that his name is not Maveric, but Paraih.
Comment by loid -
I understand that YouTube has a number of legal issues that they must iron out. But why would you actively seek to ensure their failure when the public in general has clearly voted with their feet that this is an extremely compelling website?
Why not instead help figure out a way to satisfy both the distributor (YouTube) and the content provider? Not an easy task, but the cat has been let out of the bag at this point and it’s not going back in- this level of access to on-demand content is now a part of many peoples lives.
Comment by Steve -
I think there’s a lot of downside risk for GooTube, such that it would be catastrophic to their business if the courts deny DCMA Safe Harbour protection. So I wouldn’t be suprised if GooTube pushes hard to settle out of court before this hearing. I wouldn’t be suprised if the sums offered Tur are quite big.
Personally, I think we need a court ruling on the suitability of the supposedly DCMA protection that everyone assumes that GooTube operates under. I believe it’s pretty clear that they violate one condition of this protection (all you need is one) in terms of direct financial benefit from illegal content.
One outcome would be for GooTub to have to review all submitted content, which is enough of a ruling to put a serious operational burden on GooTube.
Early December will obviously be very interesting…
Comment by Chris D -
Interesting arguments being made and I think there is a very strong possibility that Tur has a chance at becoming a huge large thorn in GooTube’s side, if not winning his case altogether. A content owner like Tur may actually represent the biggest threat to GooTube, not major media companies. While major media companies have some incentive to work with GooTube because it can serve as a promotional and distribution platform for their content, and a content owner like Tur ostensibly derives his living by licensing or selling his content to other media outlets and stands to gain very little from having his content on GooTube. In fact, the wider the distribution of his content, the more diluted its value might become to potential licensees or buyers.
A few points that I think are important:
– I don’t think anybody can argue that GooTube does not receive a direct financial benefit for infringing activity. Outside of banner ads, there are 1.65 billion reasons why. The magnitude of the financial benefit GooTube receives should be ethically difficult for the court to ignore.
– While the end user should certainly share in the liability, going after xxx,xxx John Does places an unreasonable burden on content owners. GooTube is providing the means for these users to engage in infringing activity, and in the majority of the cases is the party that is most greatly benefiting financially from the infringing activity. In fact, in most cases the end user reaps no direct financial gains from their activity while GooTube does.
– While the GooTube terms of use grant GooTube a license, not ownership, the funny thing is that GooTube is asking users to grant them this license when they are well-aware that in many, if not most, cases the user does not have any authority to grant such a license. While there is a clause where the user warrants that he or she has the rights to the content they upload, I wonder if this clause has any legal weight given the fact that GooTube and everybody else with at least 10 brain cells recognizes that most users pay absolutely no attention to this.
– GooTube is not merely a host. It is transcoding files, allowing them to be categorized and tagged and providing a front-end that makes locating and watching specific infringing content easy. I suppose a question that would be interesting to ask is what Google thinks they bought when they bought YouTube. They never referred to YouTube as a “hosting company.” Their acquisition press release specifically called YouTube a “consumer media company” but the problem is that they are providing lots of media that they don’t have any rights to. I’m a little surprised at Tim Wu’s comments in the Slate article Tom provided, as his reasoning is flawed. He states that Napster found itself in trouble because it was “providing a tool for users to find and download predominantly infringing content” and argues that GooTube is only hosting it. This is clearly false. GooTube is not only hosting the content, but providing a website or “tool” where users can find and watch the infringing content. I am amazed that a Columbia law school professor seems to have missed that point. His argument would only hold weight if GooTube was hosting the video files on its servers and not providing a “presentation layer” for them. It would be one thing if GooTube hosted user uploads of The Daily Show, for instance, and did nothing more, but instead, I can go to the GooTube website and type in “daily show” and locate that file. This is no different than Napster, and in Napster’s case the company wasn’t even hosting the content, they were simply hosting a directory of where the content was located. From this perspective, GooTube’s infringement is even more egregious because it is involved in all aspects of the infringing behavior and if I were Tur’s attorney I would highlight this fact.
– I think the issue of GooTube actually applying a process to the files where they are transcoded from one video file format to the FLV video file format adds another twist that the court must consider and which I don’t think has been addressed previously in the courts in this context. When one thinks of a “host”, we think of a service provider that allows content to be stored on a server and does not actually do anything to that content. In GooTube’s case they are performing an action on the uploaded content and changing its format.
Bottom line: I think that when you take these facts together it is clear that GooTube has some very serious arguments to contend with and it is very plausible that they will lose this case or have the groundwork laid for a future plaintiff that will defeat them. Remember, the court itself does not need to put GooTube out of business. Any court ruling that forces GooTube to change the way it works could reasonably have the same impact.
Comment by Drama 2.0 -
After breaking the motion down, the license story is a dead end because it won’t get Tur anywhere in his complaint against YouTube. The real story here is whether YouTube receives a direct financial benefit from hosting the video. The license won’t defeat YouTube’s safe harbor, but if it benefits financially its all over but the crying:
http://googlecopyright.blogspot.com/2006/11/youtubes-terms-of-use-and-dmca.html
Comment by NGD -
@#18 who asked how this is different than Napster.
The following is taken from this article, http://slate.com/id/2152264 written by Tim Wu, professor at Columbia Law School:
“Section 512(c) of the law applies to ‘Information Residing on Systems or Networks At Direction of Users.’ In 1998, that meant Geocities and AOL user pages. But in 2006, that means Blogger, Wikipedia, Flickr, Facebook, MySpace, and, yes, YouTubeall the companies whose shtick is ‘user-generated content’.
“But what about Mark Cuban’s copyright argument? Why isn’t YouTube in trouble in the same way Napster and Grokster were? The first difference, as indicated, is that Napster simply wasn’t covered by the 512 safe-harbor law, and YouTube is. Napster wasn’t ‘hosting’ information at the direction of its users, but rather providing a tool for users to find and download predominantly infringing content. It may sound odd that Napster gets in more trouble for helping you find illegal stuff than YouTube does for actually hosting it. But that’s the law and why YouTube should really, really thank its friends at Bell.”
That’s why this is different than Napster.
Comment by Tom -
YOU blew it Mark, you should have bought ‘in’ on the action. In the long run, Google / YouTube will prevail. We’ll all be looking in from the outside, watching at others’ expense.
Comment by Daniel -
This isn’t really related to the whole copyright infringement thing, but I doubt many read the whole thing.
Just thought it is interesting/humorous to note that the plaintiff is the man with copyright to the OJ Simpson freeway chase.
Comment by Kip Nickell -
This is one of three major cases in California challenging YouTube. The plaintiffs in all three are under financial duress – in Tur’s case, money owed due to a messy divorce.
That the Court TV v. Tur case fell under “fair use” was specious, at best. The “decision” was actually a comprimise: Court TV, being a for-profit venture, continues to use Tur’s video-taped news free of charge, while Tur gets free advertising from Court TV and maintains his tight relationship with the L.A.P.D.
That Tur’s suit is spurious at best can be illustrated bt the fact that YouTube says Tur did not follow the law (per YouTube’s content use agreement) and attempt to contact YouTube about the alleged copyright violations and request their removal from the site.
There’s always more, much more to these cases than what lies on the surface.
Comment by D.W. -
“If you are under the safe harbor rules, and merely a conduit to others hosting files, how in the world could you give yourself a license to those files ?”
Answer: pretty much the same way any Internet message board has done the exact same thing for the past ten years.
Compare, for example the “Grant of License” subsection of Section 12 of Yahoo!’s Terms of Service: http://edit.client.yahoo.com/cspcommon/static?page=tos
The mistake is using “granted an unlimited license” to mean “owns”. Very different concepts from a legal standpoint.
Comment by KJP -
People always bring up Napster and the fact that it got shut down. That’s fine. But what about all the P2P networks that still exist and are still used by people around the world to share all kinds of media?
Furthermore, YouTube isn’t the only site doing this stuff. It’s just in the news because it is the best-run, best-branded, and most popular video sharing site. And Google snatched it up for a ridiculous, highly speculative price.
The sharing of media can’t be stopped. They might go the Napster route with YouTube, but there will be other avenues for this content.
Comment by Michael -
A few interesting things to point out…
No one is bring up other online content providers, most notably Brightcove. Brightcove is doing it all legit and taking the proper steps to cover their asses, to put it bluntly. They will become the biggest provider of professionally produced video content on the web as they have deals in place with the always emerging AOL media and other small cable nets.
Web 2.0 is changing the rules. Facebook, the online community, made a major move this week integrating blog, video posting, and other features that have been integrated seamlessly. Pretty soon MySpace is going to be to Facebook what Trump water is to Vitamin water – less flavor, uglier packaging.
At what point will cases be filed against people embedding YouTube content on their blogs, MySpace, or Facebook? At what point do you just say: “Screw it, people want the content, lets give them the content.”
Mark may I suggest you tackle the topic of the mess that is Microsoft and their new MP3 player and OS?
Comment by NYBlogger -
does youtube have a central server that hosts these videos – yes
do other people download these videos without having to pay for them – yes
are these videos copyrighted – yes
tell me again how this is different from napster? and what happened to napster?
Comment by winash -
Good theme for discussion…
Comment by Jon -
Let’s be honest here: the people at fault are the people who post the videos, and the company that hosts them. Not just one or the other. Both should be liable.
Comment by basketball drills -
I think what he is getting at is that the license agreement between Youtube and its users is that Youtube takes full license and control of anything you upload. By uploading other people’s content, Youtube is effectively saying that they now own that copyrighted content.
This is going to be a sticky one to figure out, but Google can afford good lawyers. Maybe Youtube will one day be the sacrificial lamb that helps expose the flaws in the DMCA to help create a better fair use model for the future.
Comment by Troy -
you’re asking the right questions mark! you should attend law school!
Comment by jason -
I’ve seen this terms of service agreement before and YouTube doesn’t “own” anything that is submitted to its site. The license merely gives YouTube the right to use the videos. The license overprotective and thorough, but merely allows YouTube to promote videos on its front page, to not have to contact a video’s owner before the clip is featured on tv (cnn does this a lot) and covers all other situations where the copyright owner may need to give permission before YouTube could act. YouTube still has no control over what is submitted. Nor does it have the right to edit videos (though it can remove/exclude explicit videos). The license ensures that a user can’t sue YouTube after submitting a video to YouTube because the user doesn’t like the result of instant notoriety around the Internet. It’s an instance of an overly broad terms of use agreement drafted by overly cautious lawyers, but has nothing to do with YouTube’s ability to control uploaded content in the context of the DMCA. From Mark: when the license says ” . . .hereby grant[s] YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube’s (and its successor’s) business” Thats effective ownership. and prepare derivative works may not be editing by definition, but its the ability to edit by function. That said, i enjoy reading your blog
Comment by NGD -
Google saw this coming. They put away a tidy little sum to the tune of 187.5 million dollars of ‘indemnification’ money for YouTube. They knew they were going to get into trouble… now we just have to sit back and see how much it’s going to cost them.
Comment by Rebeccalee Coventry -
i’m gonna be a pessimist here and say the case is a slam dunk for tur.
If anything youtube is even less under the safeharbor provision than grokster was, as they host and change the file format of their content.
Comment by superdave -
“Comedy Central will realize having the funniest clips of the Daily Show on Youtube will cause more people to watch the Daily Show.”
You have numbers on that?
Too often we take the “buzz” factor as some sort of law of success. In reality, that’s not always the case.
Comment by JM -
Read and learn: http://slate.com/id/2152264
Nothing is going to change. When someone informs Youtube that a video is copyrighted, they will take it down, just like they do now.
Comedy Central will realize having the funniest clips of the Daily Show on Youtube will cause more people to watch the Daily Show.
When this all comes down and everything Cuban has been ranting about for the last month turns out to be wrong, how much do you want to bet he spins it to make it look like he had predicted it all along. Either that, or he’ll say he was being sarcastic.
Comment by Tom -
“Has anyone noticed lately that more blogs posts are about other blogs, which are writing about whats being reported in other blogs than about something original from the author ?”
Comment by Hunter -
Looks like Mr. Tur has been at this before.
http://www.centerforsocialmedia.org/videos/lanews. He lost last time but that is because news was really being reported by showing the LAriots. Youtube is someone that definitely doesn’t report the news. Things are definetly going to get interesting.
Comment by Joe -
Sam has it right.
You tube will be forced to view each entry prior to posting. Financially/operationally, impossible.
See ya..
But no, the courts cannot change how they interpret the DMCA or else Grokster will file suit and claim damages..
Comment by PSC -
Seems to me that this will be the greatest challenge for YouTube so far.
I can see how the bigger media companies that produce tv,film etc may look to jump into bed with YouTube to get the media to the greatest audience. Obviously a release deal would need to be in place, as well as a revenue model.
But I don’t see any benefit to a Robert Tur if his media reaches the greatest audience (even with a favorable revenue model in place) because I am sure that the value of his patented material is reduced as it becomes less scarce so to speak.
And if they cant get to the posters of the videos then YouTube looks to be in a bit of strife. Particularly as they generate revenue from the advertising associated with the videos .. and if they dont have advertising Google may have been somewhat better served flushing their money down the toilet.
I will continue to be intrigued by developments in this case.
Comment by berko -
Lets see if some of your previous predictions come true…YouTube seems to keep yanking more and more content. Will be interesting to see what this triggers.
Comment by South Bay -
Youtube will force the courts to reconsider how the DMCA is interpreted.
Youtube will not qualify for the Safe Harbor provision of the DMCA because they earn revenue from banner ads.
Youtube will be forced to review any and all content before displaying.
Users will decline.
Youtube will perish.
Comment by Sam -
The user that posts videos illegally should be the people they are going after. This will be interesting as this unfolds. That’s a lot of legal jargon that i’ve got nothing on.
Comment by Browie.com -