Analysis: YouTube Users Beware

YouTube is starting to make it easier for major media companies to clamp down on users who upload videos with copyright violations.

Antone Gonsalves, Contributor

October 24, 2006

4 Min Read

YouTube users who post copyrighted material are more likely to become defendants in very expensive lawsuits as the video site makes it easier for major media companies to find and remove their protected property, legal experts said Tuesday.

YouTube, which is in the process of being acquired by search engine giant Google, has never claimed to protect copyright violators. But at the same time, it has allowed users to post TV clips, music videos and other content stolen from media companies. As a policy, the site takes down videos at the request of copyright holders.

This strategy, along with easy-to-use technology for posting, viewing and sharing videos, has helped propel the company in almost two years from a blip on the Web to one of the largest video sites with 34 million unique visitors in August, according to Nielsen NetRatings.

But as YouTube tries to turn its money-losing operation into a revenue generator, the company is moving quickly toward cleaning up the site, and playing nicely with major content providers.

YouTube recently removed nearly 30,000 videos at the request of the Japan Society for Rights of Authors, Composers and Publishers. It also has signed content deals with major media companies, including Vivendi SA's Universal Music Group, Warner Music Group Corp., Sony BMG and CBS Corp. In addition, the site has agreed to provide by the end of the year software tools content providers can use to find copyrighted material and have it removed.

The combination of signing up content providers and giving them the weaponry to battle copyright violators goes a long way to avoiding a crippling lawsuit, legal experts say. However, the trend toward a cleaned up YouTube is bad news for users who have found great pleasure in sharing their favorite TV skit, or using popular tunes as the background to a home movie.

"They're taking a risk," Lee Bromberg, a partner in the intellectual property law firm Bromberg & Sunstein, said. "YouTube is not going to help them out."

Indeed, YouTube's Terms of Use makes it clear that people are responsible for what's in their videos. "You shall be solely responsible for your own user submissions and the consequences of posting or publishing them," the contract says. In accepting the terms, YouTube users also agree not to post copyrighted content without authorization.

The fact that few people read conditions for use when joining Web sites is no protection from a copyright infringement suit, which can cost a defendant from $10,000 to $100,000 in damages, even if the property owner did not suffer any losses as a result of the material being used, lawyer Randy Broberg, chair of the Technology and Intellectual Property Practice Group at Allen Matkins LLP, said.

"Copyright infringement can be very expensive," Broberg said.

By distancing itself from users, YouTube actually strengthens its legal defense against potential lawsuits. By not exercising any editorial control, it can claim under the federal Digital Millennium Copyright Act of being a neutral conduit for distributing video, much like a telephone company can't be held responsible for what's said over its wires.

In addition, YouTube can argue that its huge growth rate has made it impossible to police every video posted, Broberg said. Unlike Napster, the infamous file-sharing Web site brought down by the record industry, YouTube can also argue that its service was not built for the sharing of stolen content, but to provide a means for people to share original videos.

Under these circumstances, "users would be the first to look to for infringement," Broberg said. "They're the ones uploading the videos. The end user is the perpetrator, assuming there's a copyright infringement."

YouTube did not respond to a request for comment in time for this article.

YouTube's legal standing was probably not lost on Google, who is no stranger to allegations of copyright violations. The company is currently battling lawsuits from authors and book publishers who object to Google scanning copyrighted library books into its database without first seeking permission. Google does not make unauthorized material available, except as snippets in search results.

In agreeing this month to pay $1.65 billion for YouTube, Google told reporters that it believed the video site had the right strategy for protecting copyright holders.

"Google is not naive when it comes to copyright suits," Broberg said.

For YouTube users, then, the trend is ominous. "You just have to be careful," Bromberg said.

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