Simply put, owning a copy of a song or video does not give the owner the right to distribute the material. But does that mean that the Internet site that hosts the video is breaking the law? For that matter, are any of the sites that allow video viewing, uploading or downloading "legal"? The DMCA criminalizes production and dissemination of technology that infringes on a copyright, as well as technology that tries to bypass measures taken to protect copyrights. Therefore, one important criterion to evaluate is whether a site's real motive -- what the law calls "uncommunicated intent" -- is to infringe copyright law. If a site's intention is to aid in violating a copyright, then it is breaking the law.
"YouTube appears, based on my use of several of these sites, to permit the user to locate copyrighted material more readily and easily than, for example, Google and Yahoo." --Attorney Christopher Norgaard
How does one know what a site's actual intent is? Part of the answer to that lies in how the site operates: Are there entire television episodes available online? How easy is it to find copyrighted material? Does the site take down copyrighted works when notified of them? (It is interesting to note that the holder of a copyright has an obligation under the law to invoke its copyright; if violations are habitually overlooked, the holder may be deemed to have abandoned the copyright.)
"YouTube appears, based on my use of several of these sites, to permit the user to locate copyrighted material more readily and easily than, for example, Google and Yahoo," says Christopher Norgaard, intellectual property attorney and partner in the Los Angeles, CA office of the national law firm Ropers, Majeski, Kohn & Bentley. "It is also true, however, that YouTube enjoys a good reputation for quickly taking down copyrighted works when notified of them. YouTube has also reportedly implemented other steps to limit the flow of copyrighted material, including a 10-minute limit on videos, in order to eliminate uploading of movies or entire episodes of television programs." Norgaard acknowledges that although it was difficult to locate entire episodes on several of these sites, it was possible; some sites make it downright easy.
In fact, rather than the sites violating copyright law, it seems that users themselves may be treading on thin ice. "There is no question that the users of these sites regularly and knowingly violate copyright laws via the postings that are placed on the sites," says John Flynn, a copyright lawyer with Tiffany & Bosco in Phoenix, AZ. "These violations are frequently crystal clear and constitute direct violation of the copyright of others, along with the rights of publicity. The claim concerning sites such as YouTube is that they facilitate the copyright violations via the architecture of the IT systems that constitute the very thing that is sold. The argument is that these sites are secondarily liable under theories of vicarious or contributory copyright infringement."
The Bottom Line
What it comes down to is whether sites create an environment that fosters the infringement of copyrighted material, says Mark Litvack, an attorney at Mitchell Silberberg & Knupp who has also served as vice president and director of legal affairs, world-wide anti-piracy for the Motion Picture Association of America. For example, some would argue that the ability to upload entire Seinfeld episodes onto PeekVid.com would create an atmosphere conducive to pirating copyrighted material. Can anything be done to stem that tide?
According to Norgaard, some sites use a "fingerprinting" system to recognize and block attempts to reload works that have been previously taken down. "If YouTube were to go further and eliminate the ready access by name to mainstream artists, titles, and labels, or to go another step further and block search requests for them, it would go a long way to removing itself from any potential liability," he adds.
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Another potential solution would be to work collectively with legal content providers, notes Flynn. "Steps like charging for downloads will not, per se, stop the activity. However, entering into licensing agreements with legal content providers will certainly accomplish that goal, and YouTube is proceeding along that business line at this time by seeking to and entering into licensing agreements with major television networks."
Finally, mindset needs to change as well. Piracy and stealing are one and the same, notes Litvack, but the public doesn't always recognize that. "Many people would never go into a store and steal a CD, but they think nothing of pirating music," he says. "They believe they are not really taking something because the owner still has what they started with."
Jennifer Bosavage is a freelance technology writer based in Huntington, NY.