A quick note on DMCA Safe Harbors, Youtube and VIacom

No where in the Safe Harbors does it say it offers protections for Websites. The DMCA was passed in 1998. In 1998 there were 10s of millions of websites, if not more.

If the safe harbor laws were meant to apply to Websites across the board, they would have used the term website and its broad definition, rather than the words ISP, OSP and Service Provider to define those elgible under the safe harbors.

I know it seems like the dark ages to some, but even in 1998 there was a ton of user generated content. Pictures, Music, and even Video was uploaded, streamed and downloaded. It wasnt as neat and clean as it is today, but it was there. It was in usenet groups. It was in AOL Chat Rooms. It was in CompuServe and Prodigy Forums. It was on audio and video hosting sites. There were sites that kid put up that hosted or deep linked to thousands of streams or downloads. They weren’t nearly as fast or easy as today, but in principle they were the same.

If the goal of the DMCA was to protect every website that enabled the uploading of User Generated Content, take my word, all the politicians, as firmly rooted in the back pockets of the media companies as they were and are, would have explicitly used the term website.

They didn’t. They didn’t by intent, not by omission.

36 thoughts on “A quick note on DMCA Safe Harbors, Youtube and VIacom

  1. I don\’t know why Viacom is just suing Youtube. Why not go after the ISPs, the consumer product manufacturers and computer makers,
    agree,funny stuff!lol

    Comment by tony -

  2. Hendrickson v. eBay anyone?

    Comment by rob -

  3. Yup, Ive seen those heat maps and theyre fun to look at. Ive wondered how the data gets stored though; theres a trade-off of granularity of the data vs. storage space..

    Comment by evden eve nakliyat -

  4. This should be interesting. These University of Chicago guys are not fucking around:


    Comment by Lascap -

  5. I found this story linked on Fark. It details how the NFL is potentially violating the DMCA through massive takedown notices, and I was wondering about Mark\’s views on this since he is both a content provider through HDNet and an owner of a professional sports team.



    Comment by Ericc -

  6. Here is a nice little legal showdown between a content owner (NFL), a content poster (Wendy Seltzer), and the content distributor (YouTube).


    Comment by Keith -

  7. Google will win & viacom will leave with its tail between its legs.

    Comment by lenny -

  8. Please find the link below to an excellent illustration of many of the concepts Mr. Cuban is discussing. Interestingly, it seems like the courts may come down on the side of the user and not the copyright owner.

    This legal battle could be a precursor to the future of DMCA Safe Harbors for internet video.



    Comment by arlen -

  9. Mark,

    Just wanted to bring this to your attention.

    I uploaded a copyrighted clip of a CBS (Viacom) news story about the recent high school brawl that happened at MSG over the weekend.

    At the end of the video I added a title that said \”See more videos at BryanHauer.com.\” I then uploaded it to YouTube as a test to see if they would even publish it since it was from Viacom and in about 15-30 minutes it was live, but surprisingly without the final 6 seconds that had a thing about visiting my site.

    The video itself is still the full 1:19, but as you will see the last 6 seconds was edited out and the video simply stops playing.

    Wouldn\’t this completely go against Google Videos and YouTube\’s stance that they are protected under Safe Harbors?

    I\’ve written a post about it at http://www.bryanhauer.com/2007/03/19/google-video-and-youtube-caught-editing-video/

    Let me know what you think or where I might be missing something even though I don\’t think I am.


    Comment by Google and Youtube Caught Editing Videos -

  10. There is an interesting change going on this year with both MySpace and YouTube promising technology solutions to the problem. Most DMCA defense so far have based part of their defense on an inability to police the huge amount of content flowing through their systems. That\’s it why most policing to date has been the responsibility of the content owner and requires a takedown request. The service provider is suppose to be blind to the infringement activity. What happens now that this defense is removed? I guess that\’s why these are \”pilot programs\”.

    If this whole issue were being handled in a sane way, the government would already have stepped in to overhaul the copyright office and have them independently implemented a system that allows content owners to register their content using the same technologies that MySpace and YouTube will be using. The difference would be that a standard could be established and allowances made for the period where all the scalability and other technical flaws could be worked out.

    One example of a solution is Numly: http://www.numly.com

    \”Digital works can be uploaded to Numly along with meta data about the author and copyright in return for a Numly Number. A digital fingerprint of the digital asset is created and stored in the Numly databases. If you find an image online (or any other digital document), you can determine if it has been registered at Numly and who the author/artist is via the Numly Document Validator in the Numly portal. By simply uploading the digital asset in question, Numly will return the associated Numly Number of the work along with all of the copyright meta data and a contact link. The contact link uses Numly\’s Secure Message Center to forward your message to the copyright holder (even if their email address has changed). This new feature should make finding the copyright holders of orphaned works possible!\”

    Comment by William T. Radcliffe -

  11. Regarding the safe harbors act, a Service Provider references the delivery of content, not the content itself. Youtube is a service provider but it\’s not limited to being just a service provider – and youtube shouldn\’t be given the same protection extended to service providers.

    Comment by blaine -

  12. While I admittedly have not look at the legislative history of the DMCA, unless it says in the history that they excluded web sites for a reason, I would argue it is just as likely that they were simply afraid of the term and simplly passed the bucks to the courts to decide what their intent was. This happens all the time in legislation when our lawmakers are trying to create laws on issues they dont understand…..

    Comment by Brian -

  13. The use of copyrighted material on the web is what is allowing it to grow. Mark: Wasn\’t Broadcast.com an aggregator of videos? 2) Doesn\’t Viacom own IFilm. The hypocricy is striking to me.

    It\’s all about ownership, with out taking in an account of what consumers want, or that the electronic manufacturers, the ISPs , the telcoms, the consumers and the tube builders also have responsiblitie in this mess.

    And what about the artists and creators– who gives a fuck if Viacom is paid, when you know the artists have to sue them to get their due?

    Comment by DudeAsInCool -

  14. Absolutely right Mark. Your reading is simply the only way that makes sense. Not to mention that this argument has already been attempted and failed in the Napster/Grokster line of cases. The DMCA was certainly never intended to unilaterally allow the posting of copyrighted material on the internet.

    Comment by bg -

  15. Amazingly, I had marked a page right smack there on B1 of the Wednesday, March 14 Wall Street Journal. Above the fold, too. The notes were to remind me that the WSJ had identified one of the most unusual of things. The Government had done something right. To Quote Keven J. et. al. of the WSJ

    The Digital millennium Copyright Act of 1998, a landmark law that updated intellectual-property rights for the Internet and laying the groundwork for the widespread hosting and searching of content originating from ordinary users.

    Hmmm, so the DMCA lead to search engines and growth in web sites. The notes Id taken were to remind me to mention this to friends and file it away in my gray matter as something important and unusual.

    Fast forward to the weekend and my stumbling across Marks blog and noting that the DMCA may have a dark side. Hopefully Mark or some of his frequent blog visitors will straighten out the WSJ on their editorial page and tell the other side of the story.

    Comment by Nick Jones -

  16. I don\’t know why Viacom is just suing Youtube. Why not go after the ISPs, the consumer product manufacturers and computer makers, and the consumers. Aren\’t they all just as culpable? Or, maybe Viacom should build it\’s own platform – then they can sue their prime customers just like the RIAA does.

    Comment by DudeAsInCool -

  17. Service Provider is a pretty broad term.

    Comment by Mark Smith -

  18. I think that the question arises when you consider that the primary purpose of YouTube is not to share illegal content. You\’ve made the point before that many of the popular videos on YouTube are uploaded illegally, but it is also clear that YouTube can be, and is, used to share user generated content. Same with Flickr, MySpace, etc. If the law as written says that these websites can\’t exist, then the law should be changed, in my opinion.

    As far as Box.net, while I agree that that is clearly protected under the current laws, from a moral standpoint, it is the same as YouTube. I can upload illegal content to Box.net, and then send out the link to everybody I know, post it on my blog, etc. And basically you have the same result as YouTube, people downloading illegal content for free. The law seems to protect one, and the other is in a grey area. But you have made a moral argument in the past. Here\’s a direct quote from a previous blog:

    \”Remember, its not about how they treat Viacom. VIacom is big enough to take care of itself. It is about hiding behind a law, the DMCA, at the expense of copyright owners, to dominate the online video space.\”

    How is Box.net doing anything differently? You\’re an investor in that company(and I think it is a great service, I plan to sign up for a premium account shortly), but you know there is illegal content being hosted by Box.net, and that it is being shared. How is Box.net not hiding behind the law at the expense of copyright owners?

    Perhaps it is on a lesser scale, and perhaps it is slightly more cumbersome to share illegal files hosted on box.net, but should it matter? Is a little stealing okay? My argument is that both services have legitimate uses, and they should both be allowed to operate.

    In the end, I think by the time this case is settled, the technology will have advanced to the point where the issue is not even relevant anymore. Like Microsoft bundling a web browser with Windows, by the time it was resolved, it didn\’t make much of a difference.

    Comment by Tim -

  19. Very poor comparison of the availability of media today versus usenet/AOL Chat Rooms/etc. Content may have been available, but the volume wasn\’t remotely close to what it is today. I find the whole cry baby attitude taken against YouTube silly, especially coming from places like Viacom who are complaining about their content being uploaded. I find it extremely hard to believe that the poor resolution of content uploaded to YouTube is a real threat to a TV show that is being broadcast.

    Comment by Paul -

  20. Mark,

    Could you please your great forum to remind people that more is needed to promote math and science education. We are at a major crossroad. If something isn\’t done we will just be a country of technology users instead of technology innovators.

    This is a very popular blog and people listen to you.

    Comment by Kind And Thoughtful -

  21. So where do you stand on Googles usage of their so called \”cached\” (an inaccruate term) pages available from the SERPs?

    It really annoys me the double standard that exists around intelectual property. All the video folks like Viacom and audio folks like the RIAA show up with supenenas and lawyers at the mention of a alleged copyright infringement. Those same folks won\’t lift a finger to stop textual based copyright infringement.

    Comment by Brett Tabke -

  22. I think Marc Dziedzic got the point. Before Viacom filed the suit, they must have pretty much gone through how to prove GooTube made \”financial benefit\” from their content. Probably by showing how much their content is illegally displaying on GooTube (and they already told us the numbers in press release) and GooTube actually made ad revenues from it.

    Comment by mclee -

  23. I think Marc Dziedzic got the point. Before Viacom filed the suit, they must have pretty much gone through how to prove GooTube made \”financial benefit\” from their content. Probably by showing how much their content is illegally displaying on GooTube (and they already told us the numbers in press release) and GooTube actually made ad revenues from it.

    Comment by mclee -

  24. Mark, Box.net\’s website actually says…

    Box.net lets you share files with anyone in a matter of seconds. Any file in your Box can be immediately sent directly over the internet. When you make a file or folder public, youll be provided with a unique website address which can be accessed by anyone you give the link to.

    I understand they don\’t sell ads ON those pages, and they don\’t index the content for other users to find it, but it is a web based property which facilitates the ability to share files…

    In your post above, you said…

    \”If the goal of the DMCA was to protect every website that enabled the uploading of User Generated Content, take my word, all the politicians, as firmly rooted in the back pockets of the media companies as they were and are, would have explicitly used the term website.\”

    So why doesn\’t this apply to the \”websites\” you are an investor in? This post seems a little ridiculous, sorry man.

    Comment by Jay Gould -

  25. Let me follow up and correct myself, I gathered my information from Wikipedia which states you\’re on the advisory board for Box.net, not an investor. Either way, you may want to advise them.. 😉

    Comment by Jay Gould -

  26. This whole thing seems to get muddled and confusing: what is the right thing to do? What is fair to the copyright owner. But does anyone really think it\’s that confusing? Shouldn\’t the copyright owner have the right to determine where his/her content is shown? Why is this different than a song getting played on the radio? The only thing that is different now than 15 years ago is that there is a (many) distribution vehicles (websites) to show the material.

    Comment by basketball -

  27. In my mind being an OSP or not is made moot by the following stipulation from the link you posted:

    In order to qualify for safe harbor protection, an OSP must:

    * have no knowledge of, or financial benefit from, the infringing activity

    The key words there being \”financial benefit from\”. Highly visited content drives click-thru traffic for other links on YouTube\’s page. And I\’m sure if you ask Viacom they definitely consider the content a revenue stream regardless of where its posted.

    Comment by Marc Dziedzic -

  28. Cheers on this excellent proposition. But when it comes to the safe harbours of the DMCA, very little effort was even put forth to accurately define terminology like \”service-provider\”, which according to the statutory language, encompasses any \”provider of online services or network access\”.

    Many of the exemptions that are afforded under Section 115 permit — if not enable — willful and wanton negligence on the part of \”service providers\”. Large corporate interests like Yahoo!, for example, abuse these provisions consistently. For example Yahoo! will disclaim all liability for copyright infringement arising out of user-posted content — even if the infringement is blatant. Unless the complainant can issue a written statement, under penalty of perjury, that he is the intellectual property owner in the works being infringed, then they will refuse to remove the material whatsoever. This even holds true for copyrighted content that Yahoo! itself obtains illicitly through automated means (such as crawlers and robots), because such activities are within the scope of safe harbours under the DMCA.

    The fact of the matter is that the DMCA has far too many egregious limitations and loopholes. This Act is one of the worst devised legal instruments of the modern day, and is in dire need of reform if not outright repeal.

    Randall Krause
    SWCast Network, Inc.

    Comment by Randall -

  29. MY gosh!!! 99% of people out there just \”don\’t get it\” (oh my, that phrase aginnnn). The Internet and copyright law has ALWAYS been antithetical. The Web revolution and it\’s genre (ie. Web 1.0) were about free exchange of information, via hyperlinks. Access of other\’s information was supposed to be facil. It was suppose to be \”read first, ask if OK later\”.

    But, advertizing and commercialization changed everything. Now content owners are more concerned with CONTROLLING their property, ie. copyrights!!! That\’s well and good, but it\’s contrary to the original inherent nature of the Internet.

    So, if content owners want to protect their property on the Internet, then they must realize that it is inherently fair game for anyone to utilize (in the manner that the original Internet designers intended). It\’s not just the telcos that originally understood this, the DCMA understands this!!! If they would require a \”permission to use\” approach to content then it would destroy the Internet revolution. So therefore instead, they promote a philosophy of \”take it down\”.

    A suggestion: if big media companies want to force GOOG to play fair (and NOT BE EVIL), they need to deluge GOOG with \”take down notices\”. This is the way it should work!!! If necessary, large media companies create a specialized company that does nothing other that discover potential \”offending\” websites and then send them \”take down notices\”.

    Prediction: VIACOM will fail in this ploy, TW has already cut a deal.

    Comment by www.freeway2000.com -

  30. The legislators don\’t need to explicitly mention the term \’websites\’ in the DMCA. Judges will either take a literal, implied, or combination in interrupting the DMCA; interpreting the US Constitution is an known example. Personally, I hope GOOG prevails because copyright laws are just government enforced monopolies.

    Comment by Siggyboss -

  31. Mark I thought you were an investor in a couple online file sharing / hosting services?

    Comment by Jay Gould -

  32. The terminology is not important in this case. Youtube is a free hosting service. Plain and simple. The fact that they have made it VERY use friendly and a website interface for viewing files does not matter at all. Youtube also allows you to include the videos on other websites showing even more that it is just a hosting service.

    The fact that if it is a website or not an issue. The DMCA broadly applies to any \”service provider\” (notice they don\’t use ISP or OSP terminology either) that is \”transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider\”. Youtube is completely covered because they \”provide connections for\” the potentially copyrighted material.

    The issue is if Youtube complies with the stipulations in the DMCA, not if the DMCA is applicable to them.

    Comment by Michael -

  33. When I predicted \”Youtube is goin\’ down\” I got pilloried by those who said I had misunderstood the DMCA.

    (See http://blogs.forrester.com/devicesmedia/2006/09/youtube_is_goin.html)

    You\’re probably right, Mark, but can we all agree it will take another trip to the Supreme Court to find out if your interpretation or YouTube\’s is correct?

    Comment by Josh Bernoff -

  34. You mentioned a keyword, \”Service Provider.\” Youtube by definition could be considered a service provider. A website could be considered a service. The definition of service provider isn\’t narrowly defined as the end user\’s Internet access entry point.

    Comment by Alex Valentine -

  35. Mark,
    You\’re absolutely right. In 1998 I had over 5 gb\’s of MP3\’s that I had \”received\” and \”shared\” over the internet, and that was before most people new what an MP3 was. In those days 5 gb\’s was about half of your hard drive, but me and my buddy\’s were fillin\’ them up. The DMCA was not made to protect me and my buddies, but to stop us from doing what we were doing, while protecting my earthlink dial up provider from being sued for my illicit activities. Any idea to the contrary is ludicrous. I personally don\’t share files anymore. Not because I\’m worried of being sued, but because it\’s no longer safe. Hackers offer up all kinds of illegal entertainment wrapped up with a highway into your PC for them and their buddies. I\’d rather buy my own entertainment from a reputable source, but until they start loosening up on the licensing of that content, I mostly stick to CD\’s and DVD\’s. I have up to 6 computers running in my house at any given time, two Xbox 360\’s, two Ipod shuffles, and an Ipod nano. I should be able to use the stuff I purchase ACROSS THE BOARD. When the content providers figure that out, I think the pirating stuff will drop. People will pay for stuff if they feel they have total control of it, not with the limits being what they are now. Heck, I can\’t even watch HBO or lifetime on my Media Center PC, let alone DVR something for later. How ridiculous is that. Quit treating me like a criminal, I pay for your damn service!

    Comment by Joe -

  36. It\’s always fun to hear references back to the old days of Prodigy and the like. Shows how quick things can change on the Internet.

    Comment by Mark B -

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