March 13, 2007  ·  Lessig

Viacom_logo.png v. Logo_tagline_sm.gif

Ok, so just about 10 years after the content industry got Congress to adopt one of the most sweeping changes in American copyright law (aka, the DMCA), the content industry has decided that it doesn’t like one part of that law — the Safe Harbor Provision that protects sites such as YouTube. But rather than go to Congress to get them to change the law, the content industry, knowing Congress would not change the law, turns to its new best friend — the common law of copyright, as articulated by the Supreme Court. See, e.g., Grokster. Why burden Congress with the hassle of law making when you’ve got a Supreme Court eager to jump in and legislate? At least, that is, when there’s no Constitutional issue at stake. When the Constitution’s at stake, then it is a matter for — you guessed it — Congress. See, e.g., Eldred v. Ashcroft.

Note Count IV in the complaint – “Inducement of Copyright Infringement” – aka, the monster Grokster created.

This case — if it is really intended as a law suit and not a move in a bargaining game — should be decided on the meaning of s512(c). The question will be whether YouTube has the “ability to control” uploads before they are identified as infringing. Viacom complains that YouTube shifts to it the burden of identifying infringing content. Not true. The DMCA does. Until at least Congress amends it, or the Supreme Court adds some new common law of copyright to the statute books.

  • Will

    Here is a short and easy version of an analysis:

    Do you agree with the analogy, professor?

  • David desJardins

    You say “knowing that Congress would not change the law”. Want to bet? I will give you good odds that they get Congress to tighten the safe harbor. Attempting to apply the law, and failing, seems like part of a strategy to then persuade Congress that the law is not sufficient.

  • ACS

    To all

    In relation to You tube and Paramount/Viacom – well what did you expect? If you provide free space and don’t police content then there will always be complaints.

    But really, where does the onus lie? Isnt that the main issue? Does a person providing a platform bear responsibility or the person actually speaking???? Do we have to go through the complex process of reviewing the platform itself which was enunciated in the Grokster/Kazaa litigation??

    Surely YouTube will be able to point to the legitimate purposes of its services – Will that serve as a defence??

    Any thoughts??


    As a fellow Australian surely you are aware that the United States Fair Use model is far more liberal than the provisions of our Copyright Act 1968.

    In fact, it may amuse some of our US colleagues to learn that we are yet to get a wide (also expansive and vague) fair use defence. Rather we labour under the definitive fair dealing defence which outlines various static situations (research, parody, legal proceedings etc) where a defence is available to infringement.

    You may also be aware that a broad (US style) fair use defence was recently muted by the Attorney General’s department, and, thanks to our friends at ARIA etc that amendment to the Act was rejected.

    Accordingly, Australian politicians are definitely worse than their US counterparts when it comes to subjugation of public policy to special interests.

    Oh well, at least there will be US cases like this one to titilate the copyright fraternity in our fair country until – hopefully – a government comes to its senses and provides us with some decent copyright defences.


  • Richard Bennett

    Pals of Google conveniently ignore the fact that their favorite Internet monopoly sells ads alongside copyright material posted on their site by non-owners. Had Google been willing to share their ill-gotten gains appropriately, this suit never would have been filed.

    You can’t have it both ways, pretending that YouTube is free speech and free culture while Google’s raking in the filthy lucre from it.

  • Rob Myers

    You can’t have it both ways, pretending that YouTube is free speech and free culture while Google’s raking in the filthy lucre from it.

    Use of YouTube is indeed free speech. People can express themselves and their opinions there. This speech can be original or found, but its use is still speech. Free speech costs money to support. This can be used as a justification for copyright. It can also be used as a justification for recouping costs.

    The material that appears on YouTube can either be bought elsewhere, in which case Google should be charging for the advertising they provide, or is unavailable elsewhere at any price, in which case Google is supplementing the market and providing a social good.

    So unless you want Google to be a charity (in which case why shouldn’t Viacom be one as well?) they need to make money somehow. Advertising is better way of doing this than invoicing companies who don’t want to make money.

  • Steve

    Here’s a crazy thought… why not go after the folks that uploaded the copyrighted material? Maybe Viacom can act more like RIAA. Sue everyone… don’t limit your lawyers to one easy target.

  • FamilyManFirst

    Ah, but that’s exactly what Viacom doesn’t want to do. It’s seen the lack of success of such lawsuits, as well as the PR fiasco they’ve created, and it doesn’t want to go there. Instead, they’d like to shut down the service that gives infringers an easy forum to publish on.

    However, this isn’t a slam-dunk. The Grokster case turned, in part, on the fact that Grokster’s popularity and the majority of its income depended on infringers. YouTube is quite different; it has mostly original content on it, so there’s a good chance that the courts will judge it differently. We’ll see.

  • Joshua Zeidner

    It would appear the Professor Lessig is defending Google in this case? The fact is that YouTube is only appealing as a warehouse for bootlegged content from major media companies. Although the concept that the value here is that people can trade videos, the common use is for copyrighted content.

    This tells us a few things. 1) That meaningful content cannot be produced in an environment of non-ownership. 2) that this so called ‘peer production’ is really a euphemism for misappropriation.

  • David

    Joshua -
    Perhaps YOUR use of youtube is primarily for the viewing of copyrighted material, but mine and my families certainly is not. The real value of youtube is those original and otherwise unavailable short works that shine.

    Your supposed statement of fact is really just your opinion, backed up by nothing, and should be labelled as such.

    This tells us a few things.

  • Joshua Zeidner

    The real value of youtube is those original and otherwise unavailable short works that shine.

    You are kidding yourself if you think that YouTube runs on videos of housepets and staged reality-tv. There may be some quality short works on YouTube, but these are primarily from film producers looking for exposure. If they gain exposure, the next step is to start charging for their films ie. getting off YouTube.

    It is not surprising that you take some kind of personal offense to my statements as this cult of ‘peer production’ has become rather widespread. These concepts have, in their current incarnation, been around for a few years now. Where are the fruits of this great new development in social organization?

    While I am far from a supporter of enhancing IP rights for existing and future holders, I do contend that the issues at stake here are far more complex than this primitive polarization typically propounded by parties who frequent this list. This Permission culture/Remix culture is perhaps a feature of the foundation of meaning in our world, but it does not even come close to explaining it fully. Also I am quite disappointed that Lewis Hyde has not been credited for his work in this area, a further example of how Ivy League schools maintain their dominance in the intellectual world at the expense of those who maintain its integrity.

  • Joshua Zeidner
  • Joshua Zeidner

    The real value of youtube is those original and otherwise unavailable short works that shine.

    oh, and btw if this is your stance then I would say that you should not really be taking sides in this court case. Viacom doesn’t wish to wipe out your shiny content, they just want Google to stop trespassing on their rights of distribution. What is going unsaid here is that Google knows that YouTube is being used primarily for bootlegging, but they refuse to take measures against it because as Cuban points out, they do not recognize the value in the shiny works you describe, and prefer to lean on the ‘safe harbor provision’ in the DMCA. Perhaps you should give their strategy department a call and set them straight?

    CUBAN: Now some of those who are so self absorbed in net culture and have no idea how the real world works might think that all of this leads to more viewing and consumption.

  • ACS


    I dont think Google is an easy target. That William Patry is an awesome copyright lawyer.


    I dont agree that just because a service is used in part for bootlegging that it must be banned. Surely there is more to it than that. What about DCMA?? What about the safe harbour?? Hasnt (your) congress already expanded the law from a simple determination of whether infringement is possible or common to consideration of YouTubes conduct??

  • Tim Amidon

    Dr. Lessig: I found myself laughing heartedly at the nuanced juxtaposition of the stance, in your rendering, that the Supreme Court has taken regarding DMCA, via Eldred and Grokster respectively: well put.

  • Joshua Zeidner

    I dont agree that just because a service is used in part for bootlegging that it must be banned.

    ACS, this is the one and only response I will make to you as I do not communicate with non-identities.

    I am not suggesting that the service be banned. Im suggesting that they pay for damages. Google’s Ox gored Viacom’s Ox and they have to pay up.

  • Carlos Ovalle

    A problem, of course, is that even not taking into account peer or self produced material, the use of Viacom’s and other’s copyrighted material is not necessarily infringement.

  • VCMike

    Professor Lessig–It has been a long time since my law clerk days so I am sure I’m missing something, but it seems to me that the DMCA safe harbor provision might not apply at all to a content site like YouTube. The definition of a “service provider” seems targetted at what we conventionally call an “ISP:”

    “As used in subsection (a), the term “service provider” means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.”

    On my reading, YouTube does not transmit, route or connect communications among points specified by a user, and, moreover, modifies the content by putting the YouTube logo on the video.

    Am I missing something here?

  • DrewB

    Picked up on HuffPo, Prof. Lessig delivers and editorial on NYT:

  • Paul Kamp

    Nice Op-Ed piece on the NYT.

    To me the real problem is the inconsistency of the laws internationally. Regardless of whether Congress or the Supreme Court decides the copyright issue the internet is not a US phenomenom, it is worldwide. Until we can normalize the laws internationally it will remain difficult for service providers to provide their service worldwide.

    Applying this to the Viacom case, what is the violation and of whose laws? Is YouTube violating US laws by streaming Viacom content to France? What laws would apply if the YouTube servers were in Canada? Or Sealand?

    Not sure what the answers are but I think this will remain an open issue until the intenational laws are normalized.

  • poptones

    Doesn’t matter who wins, viacom ultimately loses. Go to the MTV “featured website” in firefox and see if you get anything more than a flipping logo.

    Viacom is clueless. They still “don’t get the internet” and this just helps prove it. Or maybe they’re not entirely clueless, they jsut can’t figure out how to do the content delivery with the robustness youtube has managed and they want in.

    But I doubt it.

  • Alexander Cameron Stewart


    Google’s Ox gored Viacom’s Ox and they have to pay up

    How very old testament of you. I do however note that Exodus only provides that “if it was known that the ox tended to thrust in times past, and its owner has not kept it confined, he shall surely pay ox for ox, and the dead animal shall be his own“.

    It is perhaps a little lax to refer to old testament determinations of damage in order to refer to the concept of intellectual property, which was not in existence at the time, but perhaps you could explain why it is Youtube that owns the ox and not the person uploading the materials. Surely Youtube merely owns the land upon which the ox was gored?

    Putting aside the ancient judiac philosophy for one moment, I still do not see your objection to the application of the DMCA provisions. It appears that you are relying on a simple gesture that “Google knows that YouTube is being used primarily for bootlegging, but they refuse to take measures against it because as Cuban points out, they do not recognize the value in the shiny works you describe” Surely that will be a question for the Court.

    Furthermore, I think it will not help Paramount’s case if they have failed (which i understand to be the case) to properly request the taking down of the materials provided for in their claim.

    As far as I can tell, unless Paramount/Viacom can establish Google/YouTube has not removed materials then they will have no case.

    Perhaps the final judgement will be for those materials to be taken down, no damages and costs for Google on the basis of Paramount’s failure to notify?

    Alexander Cameron Stewart
    (Formerly known as ACS)
    Brisbane, Queensland, Australia

  • three blind mice

    “…if it was known that the ox tended to thrust in times past, and its owner has not kept it confined, he shall surely pay ox for ox, and the dead animal shall be his own”.

    if nearly every previous episode of the Daily Show was available on YouTube the day after broadcast, and YouTube does nothing to prevent it from happening again, then surely YouTube shall pay per Daily Show for Daily Show.

    YouTube is ripping off Viacom. it is obvious. “thou shalt not steal” was never meant to be interpreted so narrowly.

  • Chris Castle

    First, the DMCA “service provider” definition was never designed to protect YouTubes, true enough. But even if it were, YouTube pretty clearly fails the knowledge predicate conjunct of 512(c), a condition to getting to the safe harbor, namely:

    if the service provider
    (A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
    (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
    (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
    (B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
    (C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material is claimed to be infringing or to be the subject of infringing activity.

    If YouTube can get through these three hurdles, they can then argue for the safe harbor, but I don’t see how they can. However, to say that the law places the burden on the copyright owner of policing systems that are designed to perpetuate massive infringement until a copyright owner finds them out is plainly an unreasonable interpretation of the safe harbor.

    YouTube clearly must be aware that they are engaging in infringing activity, that’s why the Viacom deal fell apart over indemnity. They clearly benefit financially given the multimillionaires created on the backs of the creative community. And if that’s not apparent now, I have to believe it will be after a microbial scrub of YouTube and Google emails in discovery.

    Otherwise, copyright owners would be expected to spend hundreds of thousands of dollars a day just to police YouTube, which may be the latest dodge to kill creators coming from Silicon Valley, but which is unlikely to fly in the 2nd Circuit.

  • ACS

    But Three Blind Mice – perhaps it may be said that YouTube has kept the damage confined in accordance with the law.

    Surely the issue in this case is whether

    (a) Has YouTube has conformed with the standards of public protection set by the Congress in the DMCA; and,

    (b) If not then, Has YouTube authorised the infringement of copyright in other works?

    I think the answer to (a) will be yes subject to Paramount/ Viacom showing they have made a complaint which has not been remedied. The only real argument against safe harbour being given is that YouTube has received a “financial benefit directly attributable to the infringing activity”. I dont think the interpretation of ads on the YouTube site as a “Direct commercial benefit” will apply because those ads are run on all YouTube sites whether the material is infringing or not.

    As you all know, I have in the past been strongly in favour of intellectual property protection in cyber space, but now the law is changed by parliament and we must accord to that law. The DMCA clearly shifts the onus from the service provider to the intellectual property owner when it comes to policing infringement.

    But what is the alternative?? Well, clearly the only alternative for Youtube to continue is for every peice of material posted on the site to be scrutinised by employee of YouTube before they are posted to the site. Would that give users the advantage of the technology??? Do you want to stifle the widespread availability of information from ordinary citizens in that way???

  • Jessica H.

    Professor Lessig: As both a student of Media Studies and a 9 year “veteran” of the Internet industry, I have only recently been exposed to the work that you’re doing. It is both important and exciting to have found a true voice of reason who champions the value of freedom of speech, information and creativity online. Thank you for speaking out on behalf of so many who share your values and ideas.

    In the context of the Viacom vs. YouTube lawsuit, I agree with Professor Lessig here—the onus per the DMCA is certainly on Viacom and therefore renders their argument stated in count IV of the complaint shaky at best. Isn’t it ironic that the DMCA worked for so well for everyone until a site appeared and shook the tree of the media conglomerates? Clearly, Youtube does not “induce infringement” by merely providing a platform for the exchange of ideas and content in the form of video. It simply acts as a conduit—a conductor of sorts. As it would be impossible to perform a pre-screening and approval process prior to a user’s uploading of content (such a control would in and of itself stifle the creative aspects of the site that is deemed valuable by its users), there is no possible way for the site to identify the materials as infringing and therefore control the content prior to its upload. In addition, as the fair use factor is truly vague and completely ambiguous, it would be truly difficult for the site’s proprietors to hence identify certain content as potentially infringing versus content that may be protected by fair use. Screening software also does not solve this issue by any means—the code is not human and removes content merely based on the settings produced by its programmer and might therefore block content that is not an infringement. Yes, there are obvious and blatant postings of copyrighted materials on YouTube, and identified work that is an infringement MUST be immediately removed by YouTube if requested. I am not against the protection of one’s intellectual property. However, it would be unfair for the site to make the immediate judgment call on what is or is not copyright protected material—it is not their decision to make. In addition, such a decision would stifle free speech on the property by pulling materials when the material is potentially safe from infringement under fair use. Shouldn’t the burden be placed on the major media conglomerates to make such identifications and request removal as OCILLA clearly outlines? Why should the story suddenly change for Viacom? I think it’s because they may have to actually invest a little bit more in protecting themselves, and more work for them is not what they feel they signed up for. I for one think the responsibility should come from the copyright holder—the consequence of placing the burden on YouTube will result in a clear case of a “chilling effect” on the free speech of the users of the site. Viacom has no vested interest in protecting the platform, merely it’s own property. Thus, let it protect it’s own property and make its own decisions on use and thus provide its own instructions—YouTube has made the process really easy for them and clearly has conformed with U.S.C section 512C. I therefore think that this lawsuit, truly designed as a way for big media companies to pressure lawmakers into bending to their will, will be tossed on the basis of the DMCA as long as YouTube can argue that they are protected under the safe harbor provision (which in my opinion, they are.) The internet was designed to be a haven for creativity and a forum for free speech and the exchange of ideas and information. It should remain so without the interference of big business; the cost of stifling free exchange will be paid by us all in the end if we allow it to happen.

    On another note, ACS—I am with you all the way on your point that YouTube’s acceptance and profit from advertising sales does not equate to a direct commercial benefit from the use of infringing materials. Web publishers make their profits in two general manners: by the sale of advertising and on a subscription basis. To your point, YouTube’s ads would be placed throughout the site and would therefore surround all of its content (both content that could be considered fair use and 100% original content) and not merely content that potentially infringes on copyright. Therefore, the argument that YouTube has received a direct financial benefit from infringing activity does not hold up.

  • Reactor

    After reading Professer Lessig’s blog it’s difficult for me to add more to what was already said. I think the core issue’s were stated quite clearly. ‘fair use’ versus copyright infringement and the ‘safe harboring’ section of the DCMA which could possibly protect YouTube from prosecution.

    Another argument that was discussed less was the controls on free expression. YouTube provides a forum for the average person to express themselves creatively. They also allow people to upload video footage from concerts and Music television-type of clips. The creation of satires, paraodies, etc using copyright material could be looked at as digital pop-art, and digital DaDa, juxtaposing different video images to create a new work. I don’t think this is anything new as artist and people have been doing this for a long time. The major difference is now there is an extremely large public forum for which the work can be seen, i.e. the internet.

    Issues that are worth looking at:

    Viacom/Paramount and other conglomerates wanting to cash in on anyone’s freedom of expression and/or limit the public’s ability to express themselves by controlling internet content is wrong. This is no different from me making a video and showing it at my local cafe. Would these conglomerates expect to get paid for that too? Probably, but since they cannot police the world how can they monitor this. They can police the internet from the comforts of their offices.

    Media Conglomerates as stated, don’t get it. They prefer to spend years and millions of dollars in litigation instead of competing by using that same amount of energy providing their own sites like YouTube.

    Let’s face it, large conglomerates are hard-headed and only want to be compensated for use of work they own. That is why they have worked so hard to change the copyright ownership laws to their advantage. If conglomerates worked with people instead of against them they would get more cooperation and actually have more to say in the matter.

    In addition, if the US government hadn’t sold out its constitutional, perfectly good copyright system for corporate interests, we probably would be having a different discussion altogether. The Supreme Court and Congress have an opportunity to make significant changes for the benefit of people instead of corporations, but history shows they will not change that pattern anytime soon.


  • Andrew Lever

    Although the discussion appears to have moved away from “ox-goring”, I think it is worthwhile to point out that those analogies treat intellectual property as if it were actual, physical property. But intellectual property differs from physical property in a way that might caution us against treating them the same.

    If I steal your ox, I have completely deprived you of that ox. You cannot use it for food or plowing or petting. You can’t use it for anything at all. But when JStewartFan88 posts a two-minute clip from The Daily Show on YouTube, Viacom is not deprived in the same way. They are not prevented from further airing of that material on TV. They can still put it up on their own website and they can still put it on a Best Of The Daily Show DVD.

    Viacom wants people to visit their own website to see these Daily Show clips in order to make money from advertisements and to promote their other products. When people get the same content from YouTube, YouTube gets that ad-money instead. This is where the damage is. People are using YouTube in a way that reduces Viacom’s ability to turn content into advertising dollars. The fact that it’s intellectual property makes the situation a lot more complicated than “I gored your plow-ox, how much do I owe you”. If you want to make an analogy to physical property, you need to explain why the difference between intellectual and physical property doesn’t matter.

  • Alex R

    Various commenters, such as Chris Castle, seem skeptical that YouTube meets the requirements to be eligible for “safe harbor”.

    It seems to me that the language of the law clearly gives YouTube safe harbor, given their behavior. Let’s go to the law… First, note that the term “service provider” does clearly cover YouTube, and not just ISPs — VCMike missed that the ISP-only definition only defines the term as used in subsection (a), rather than 512(c) which is the relevant one. Just following that definition is a second definition: As used in this section, other than subsection (a), the term ”service provider” means a provider of online services or network access, or the operator of facilities therefor… YouTube is clearly a “provider of online services”.

    Next, what are the requirements for safe harbor spelled out in 512(c)? Chris Castle quoted them already; I would simply note that they consist of (A) and (B) and (C), where (A) is in turn satisfied by (i) OR (ii) OR (iii).

    (A) is the “knowledge predicate”, which will be satisfied if they don’t know that “the” material is infringing, or if they find out, upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material. The word “the” is important here — section (A) is not violated just because they know that some people post infringing videos. They must be aware of (and ignore) specific infringing material for them to violate this section. And of course, they do adhere to (A) (iii), see here.

    Section (B) is perhaps the subtlest — what constitutes “a financial benefit directly attributable to the infringing activity”? It’s not clear, but this sounds like it’s intended to deal with someone engaged in out-and-out piracy-for-profit, which YouTube is not. Assuming that their revenues come (or will come) from advertising on all of their webpages, those revenues would not be “directly attributable” to the infringement, but only to the fact that people use their website. In any event, this section only applies if they have the “ability” to control the infringing activity — I’m sure this will be fodder for the lawyers, but the fact that YouTube can’t tell whether or not a video infringes without someone telling them will speak directly to this.

    Finally, section (C) says they must respect the takedown notices, which I have already noted, they do.

    To sum up, the DMCA safe harbor provisions are designed *exactly* to deal with the type of problem that YouTube faces — a situation where a service provider allows its users to upload content without human review by the provider.

  • Richard Bennett

    Assuming that their revenues come (or will come) from advertising on all of their webpages, those revenues would not be “directly attributable” to the infringement…

    Um, no, I don’t think so. You see, Google puts different ads on different pages, hence the revenues from the ads on the pages with infringing content are directly attributable to the infringing content. The real essence of the case is Google’s lack of willingness to properly share the revenues from infringing content with its rightful owners. Google increasingly depends on illegal activity to make its revenue numbers these days, and that’s a serious problem.

    The Safe Harbor provision was clearly not intended to protect companies who profit from criminal activity.

  • Vanessa Crase

    Mr. Lessig, I must agree with your points profusely on the subject of Google and YouTube vs. Viacom. The law is such a gray area in regards to copyright acts in an ever changing world of technology and more and more frivolous lawsuits of one major corporation versus another. In my humble opinion, I believe the best way to begin to unravel this tangled web of lawsuits and to ensure that all artists are compensated for their materials being used and seen on the internet, that we as a nation must refine our definition of “fair use.” The term is already very broad and general and does not account for the changes in technology that have come about and so before any decisions can be made as to whether or not Google has violated any copyright law, this term must be redefined in the law.

    As far as the dilemma between Google and Microsoft is concerned, I also agree that “fair use” must be redefined. Microsoft is seemingly jealous that Google bet them to the punch in creating the idea for the Google Book Search and it seems as if this is where their opinion and “calling foul” on Google comes from. Thomas Rubin was out of line in proclaiming that companies like Google, “create no content of their own, and make money solely on the backs of other people’s content, raking in billions through advertising revenue and IPOs.” Companies such as Microsoft and Viacom, while seemingly speaking up for the “little guy” have forgotten about those who have created these works in the first place. If anyone is to be compensated for the use of their work, it should be the original creators and that is no longer even easy to figure out since so many works have ridiculously long copyright periods on them due to extreme lobbying by massive corporations to Congress. One article sums up this argument between Google and Microsoft perfectly, “Google’s business is based on making other people’s content searchable and available to its users. Stop Google from collecting more data and you hobble the giant. Something that would please another giant no end.” Google is not setting up to make it so that all books are able to be downloaded and printed out by any person in their entirety, they are merely trying to bring books and the publishing world up to speed to where technology has let us in every other area-to the Internet. This can spark new interest in old books and ideas, and since when was it a crime to create ideas merely by bringing to life works of art that have been forgotten or overlooked in recent times?

  • Alex R

    Richard Bennett wrote: revenues from the ads on the pages with infringing content are directly attributable to the infringing content

    Perhaps Richard Bennett is aware of court decisions on the meaning of “directly attributable” of which I am not. However, it seems to me that YouTube’s revenues ($15 million/year, at last count) could not be considered as such.

    First of all, at present, I don’t see a lot of advertising on either their “search” or their “play” pages — I suggest you hop over to and take a look for yourself. (I don’t actually know where their revenue comes from.) And what little advertising I do find on the site doesn’t seem to be particularly targeted — further reducing the link between content and revenue.

    But in the end, the revenue that YouTube does get, however they get it, is “directly attributable” to the service they provide (of storing and streaming videos uploaded by users) and not to the content of those videos, because they do not charge for the content, nor do they discriminate between different types of user-uploaded content in their advertising charges. (They may have deals with content creators to feature their content, but of course that’s not what we’re talking about here.)

    Does YouTube “profit from criminal activity”, as claimed by Mr. Bennett? If uploading infringing video is criminal, and they profit when this video is viewed, then the answer is yes, of course, just as ISPs profit when fee-paying customers use their networks to infringe copyright, or as telephone companies profit when their customers use their lines to criminally conspire with each other. Contrary to what Mr. Bennett says, of course, it is *exactly* this kind of involuntary profit from criminal activity that is the intended subject of the DMCA Safe Harbor provision.

  • Deb Block-Schwenk

    Alex R, I think you’re being a bit too hard on Richard Bennet, above. Even if it hasn’t been fully implemented, it’s logical to imagine that Google purchased YouTube (for a lot of money!) with the intention of adding some type of advertising to it, and since Google is known for targeting ads, it also makes sense to assume that this will be part of the advertising scheme. To what extent copyright owners should be entitled to some of that (eventually realized) advertising revenue is a question not yet resolved to anyone’s satisfaction.

    However, I do think Viacom is going too far in its response, assuming they are serious in bringing this to the courts. As Professor Lessig notes, the Courts have not traditionally been involved in the constantly changing implications of copyright law and their involvement creates a precedent far more potentially dangerous than legislative changes. Congress, while unfortunately very tied in with the big media companies, provided the safe harbor provision of the DMCA as a compromise. If that compromise needs adjusting, it is probably going to be handled better through the nuances of the political process than the Courts.

    My fear about shifting the burden of filtering content to the host or web page service is the chilling effect that will occur. Is my 15-second clip of a Viacom show fair use? What site administrator is going to take the chance of a crippling lawsuit? After all, any decision reached in the Viacom vs Google case would have wide-ranging implications for all websites that host any kind of content. The effect on free speech, creativity and fair use could be catastrophic.

  • Hilla Hoitash

    Prof. Lessig,
    I totally agree with what you have written above. I just want to add that I think that it is not only a story of changing the copyright laws or accepting them, I think that it is also a story of “Google” and “Viacom” as a huge companies that are getting a publicity through that so called “court fight”.
    I am sure that “Viacom” could have solved this problem with “Google” without getting to this point and I am positive that changing the law is not their first priority. More than that, I believe that even if this problem will be solved some way or another (between the companies or through the court), there will always be another websites (maybe not as big as “Google”) that will infringe the copyright law and will harm “Viacom’s” copyright and my question is – will they sue them too???

  • jessica b.

    i too am in agreement with what you have written about the Viacom v. Youtube… And funny enough, very similar thoughts came to mind that Hilla Hoitash posted not to long ago. How convenient it is that both Viacom and Youtube are getting so much attention (publicity) from this issue… There is no such thing as bad publicity it seems, therefore both companies will in one way or another benefit from this. But seriously, how far will this go? Will Viacom really be able to control Google/youtube? Doubt it… There is way to much hazy undefined area when it comes to ‘copyright infringement’ on the Net or other technological systems. But honestly, although (just like most businesses) Google’s first objective is to make money, and they do this in one way by making information readily accessable, there are benefits to others from that. Such as the general public’s ability to search the world from the comfort of their own home, and also, the benefit of having the creator’s work searchable and available to all. I don’t think that Google is trying to rip off or exploit the creators. Again, I just think that there is so much grey area it is hard to identify what is ethically right or wrong. But like Hilla had said before… Say Viacom did win over Google, until there is an actual law set,is Viacom going to take on the world, all of the other companies that do or try to do the same thing as Google/Youtube? It seems impossible any way you cut it.

  • msmith828

    I think the onus of finding copyrighted material on youtube should be on Viacom. Youtube is just part of the information highway, and people are putting video and audio on it. When Viacom or some other company complains, Youtube reacts and takes down the posting. Notice how Viacom did not pay any attention to youtube until it was owned by google. Maybe it’s because Google has deeper pockets. Congress should not get involved. Laws are already in place, it is up to youtube and viacom to figure out how to resolve this.

  • Chandler Mason

    I think that Viacom and others could benefit a lot more by finding out ways they can profit from YouTube outside of court. It seems like so much attention is spent trying to get what is Google’s, rather than what could be Viacom’s.

    This may very well be a “bargaining game,” albeit one between a company with a lot of foresight, and a company trying to milk the moment. The whole case just seems completely frivolous.

    Viacom should be concerned about making fresh content instead of worrying about their stale content being available on YouTube.

  • Patrick Baird

    Prof. Lessig,
    I can’t help but see the irony in YouTube’s tagline of “Broadcast Yourself”, given the fact that their most heavily viewed content tends to be copyrighted material that they don’t own and that is at the heart of the latest Viacom v. YouTube battle.
    I must agree, this lawsuit is probably a strategic move after negotiations halted. I think it’s unfair of the DMCA to shift the burden of identifying infringing content on the author, as it seems counterintuitive and against the goals of copyright law.
    I’m fascinated to see what the results will be, particularly if this case goes to court and isn’t settled.
    As a suggestions, I think it would be beneficial for YouTube to create an “opt-in” system that content creators can use to post copyrighted materials, with some sort of revenue sharing component. YouTube has the technology and capacity to adequately provide the service it provides, and a logical next step would be to do it in an ethically sound model that respects authors and content creators and shares. Google is already doing it with their advertising programs for websites, it doesn’t seem like a far stretch for them to provide revenue sharing for video content.


  • Erica C.

    This is probably not a popular opinion, but until transmitted video can be encoded in such a way to prevent re-capture from its original format and redistribution without the copyright holder’s permission, then sites like YouTube need to adopt policies like that of iFilm that review the video content before it is posted. I contend that YouTube does not qualify for the safe harbour clause in the DMCA and by refusing to take responsibilty for what is posted on their site they are opening themselves up not only to ethical scrutiny, but a lawsuit. Viacom is totally within its rights to seek damages and discourage the practice of turning a blind eye to illegal activity.

  • Jim

    I got as far as Joshua on the comments (“works that shine”)and had to say something. The idea that

    “Viacom doesn�t wish to wipe out your shiny content, they just want Google to stop trespassing on their rights of distribution.”

    is wrong in the broader picture. Viacom wants to control both distibution and content. As Fricklas stated in the Post:

    “Does YouTube have “knowledge” of copyrighted material on its site? Does it have the “right and ability to control” the content?”

    So what sort of content would we have under the policed system of which Viacom is a leading player; MTV? Fox?
    YouTube and the plethora of video sites that it has spawned (yes the genie is of out of the bottle now and 1 billion dollars is not gonna put it back, de ja vu Napster) provides content that brings the cultural property of everybody as human beings to within reach of millions. I know as an English speaking father raising a family in a non-Englsih speaking country YouTube has allowed me to provide media content for language learnng for my children on a daily basis. Media where I can choose the content and which develop the values in my child which I hold myself: documentaries, art, science history and culture from around the world.
    The money that Viacom is throwing at this is the cork which their sweaty hands are trying desperatly to fit back in the bottle of 18th century property rights (“DMCA to shift the burden of identifying infringing content on the author”)

  • Bark Uban

    Why does Mark Cuban have credibility?
    He got rich off the dot-com bubble, and his content doesn’t exist at all on the ‘net anymore. It was popular for about two years, then vanished *entirely*. There’s no trace left.

    I really don’t understand why I should take Mark Cuban seriously. Someone, please explain.

  • tekel

    Is anyone blogging the progress of this lawsuit? Does anyone know where I can find the pleadings that have been filed so far?

  • tekel
  • Erik Schmidt

    I’ve been covering the case at Tech LawForum, where we also have just added a video of a panel discussion held at SCU Law, in which the participants discussed the DMCA Section 512 “Safe Harbor” provisions and how they relate to the Viacom/YouTube case.

  • Andrew Leonard

    Blah de blah. Two huge corporations arguing over cash. The internet democratizes the world in terms of visual and and audio works.

    It used to be that actors and musicians got paid when they performed and not thousands of times over for one piece of work. If the initial investment outweighs the return it makes sense to not bother. Maybe this will save from all the garbage that is produced and peddled to us as entertainment. Personally I believe that any work that is good enough will make money.

    Like it or not the genie is out of the lamp.

  • Stephen

    This is a complete invasion of privacy on the part of Viacom and our user information doesn’t have any relevance to their billion dollar lawsuit against Google. Google should be able to anatomize the user information before handing over 12 terabytes of personal information so my privacy and the privacy of millions like me are protected. I have a campaign that will force Viacom to allow Google/YouTube to protect us or 100,000 will boycott Viacom and all its subsidiaries:

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