How the DMCA Protects YouTube

bartle writes "Slate is running an article that analyzes the question of how much legal trouble Google may get in having bought YouTube. Not much, according to the author, and thanks seem to go to a provision in the DMCA that may provide more protection for YouTube than torrent services." From the article: "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."

ACtually, it is possible to download from Youtube

[Anonymous Coward]

It isn't hard to download from youtube, it is actually quite easy. On top of that, someone can convert to Mpegs and easily distribute. Sounds to me Youtube pretty well resembles Kazza, just a couple more steps involved though.

Re:Who's on first? What's on Second?

[interiot]

YouTube has processes in place to receive DMCA takedown notices and remove identified copyright material. Napster didn't have a process in place to do this, and claimed to not be able to do so. The judge disagreed and said Napster had both the ability and duty [wikipedia.org] to remove identified copyrighted material, but did not, so Napster was held liable.

Re:True

[Chris Burke]

On the other hand, YouTube is mostly non-copyrighted material.

Attack of the pedant: YouTube is mostly copyrighted (since in the U.S. everything is copyrighted automagically) material hosted and distributed with permission of the author (implied by them uploading it to YouTube). But I know what you meant, non-infringing material.

Covered in TWiL

[MaceyHW]

This exact issue was the focus of discussion in the first episode of the This Week in Law Podcast [www.twit.tv].

The panelists seemed to agree that is is an issue which the DMCA handles well. These letters are just a system of notice; failing to comply with the letter requesting that you take down the contested content doesn't have any bearing on a subsequent legal dispute over that content. It provides a mechanism to correct copyright problems without litigation.

/.ers love to complain about these letters as a tool of oppression, and certainly there's some chilling effect because most small operations are likely to take down the contested content, however there was at least a good intention behind this system.

Re:and there's another factor too

[LordLucless]

No, the copyright holder has to want to press charges. Who do you think owns those songs? I'll give you a hint, it's not the artist.

It's just commonsense (but then, IAAL)

[john-da-luthrun]

A similar legal exemption applies in Europe, where you are exempt from liability for material in respect of which you are the "host", a "mere conduit" (which would cover your ISP). There's also an exemption for "caching", but that only covers caching for the purpose of improving performance, rather than, say, Google's website cache (which would infringe copyright if hosted in Europe).

The hosting exemption is subject to "notice and take down" provisions, which I gather also apply in the US. Ironically, the wording of the EU law means YouTube would increase its liability were it to monitor content for copyright violations - because you only need to look at YouTube for 15 seconds to come across material that self-evidently infringes copyright, and the moment YouTube is aware of infringing material then (under the EU law) it would be required to take it down "expeditiously" even if it has not received any complaint from a copyright owner. One of those areas where ignorance can be bliss.

But the bottom line is that, without these exemptions, the internet would be unworkable. No ISP or website host could remain in business for five minutes if it was potentially liable for material it hosted or transmitted. And without these laws, the ISP or host would be liable in many cases (eg for hosting child pr0n).