Simply put, owning a copy of a song or video doesn't give the owner the right to distribute it. But does that mean that the site that hosts the material 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's breaking the law.
How does one know what a site's intent is? Part of the answer to that lies in how it operates: Are there entire TV episodes available? How easy is it to find copyrighted material? Does the site take down copyrighted works when notified of them?
"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 at national law firm Ropers, Majeski, Kohn & Bentley. "It's 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."
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. "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's sold. The argument is that these sites are secondarily liable under theories of vicarious or contributory copyright infringement."
Smoking and piracy aren't cool, Fred
What it comes down to is whether sites create an environment that fosters copyright infringement, says Mark Litvack, an attorney at Mitchell Silberberg & Knupp who has served as VP and director of legal affairs, worldwide anti-piracy, for the Motion Picture Association of America. Some would say 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?
Some sites use a "fingerprinting" system to recognize and block attempts to reload works that were previously taken down, Norgaard says. "If YouTube were to eliminate the ready access by name to mainstream artists, titles, and labels, or ... block search requests for them, it would go a long way to removing itself from any potential liability," he says.
Another solution would be to work collectively with legal content providers. Charging for downloads won't stop the activity, Flynn says. However, licensing agreements with legal content providers could help; YouTube is entering into licensing agreements with major television networks, he says.
Finally, thinking must change. The public doesn't always recognize that piracy is stealing, Litvack notes. "Many people would never go into a store and steal a CD, but they think nothing of pirating music," he says. "They believe they aren't really taking something because the owner still has what they started with."