Warner Copyright Chief Wishes Viacom-YouTube Case Would Disappear
SILICON VALLEY -- The Viacom-YouTube case is ancient history as a controversy between Google’s video site and copyright holders, said Warner Bros. Entertainment’s chief intellectual-property lawyer. “You would be hard-pressed to find a content owner” that has a current grievance against YouTube, with its Content ID system for identifying infringing material and giving rights holders ways to remove it or take commercial advantage of it, said Dean Marks, a senior vice president at the studio. He said late Monday that he keeps hoping the sides will just settle the case “and move on.” Seeing it through to a final court decision seems likely only to make relations between content makers and Web companies “more murky,” Marks said at the Legal Frontiers in Digital Media conference of the Media Law Resource Center and Stanford Law School’s Center for Internet & Society.
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The “courts are understandably reluctant” to subject Web businesses to the enormous burden of statutory copyright-infringement liability unless they're obviously “very, very bad actors” rather than established companies, Marks said. That’s a “flaw in our country’s law,” the Digital Millennium Copyright Act, he said. Marks pointed favorably to European law and its “no-fault approach,” under which “if you're in a position to stop copyright infringement, content owners can seek an injunction without the specter of unlimited damages.” Panel moderator Fred von Lohmann, a Google senior copyright counsel, called the position “a very sensible view.” Marks joked, “Sounds like I said something very bad."
The 2nd U.S Circuit Court of Appeals last month “basically eviscerated” Viacom’s arguments for requiring websites to police user content, even as it formally revived the programmer’s huge infringement case against YouTube, said Corynne McSherry, the Electronic Frontier Foundation’s intellectual-property director. The appeals court’s discussion of the “control and benefit” that would disqualify YouTube from DMCA safe-harbor protection was highly confusing, though, diverging from the 9th Circuit’s analysis in UMG v. Veoh, she said. “That’s going to be an open and messy area going forward.”
Marks agreed, adding that the 2nd Circuit didn’t go so far as to grant immunity to a site for honoring takedown notices if it’s also “affirmatively encouraging” infringement. “That’s what a lot of cyberlockers do,” as did Megaupload, now closed, he said. “I don’t think the DMCA should insulate that.” No court has decided the question, von Lohmann said.
Both the trial and the appeals courts in Viacom “basically mangled” the case by failing to apply the U.S. Supreme Court’s Grokster interpretation of inducement of infringement, Marks said. The 2nd Circuit opinion includes “a very, very odd shoehorning-in of how indirect” liability “might affect the DMCA,” he said.
The 2012 election campaign will involve more online activity than ever and an increase in takedown demands in response to the use of copyrighted material, von Lohmann said. “It will be an interesting test for the system,” he said. The EFF has called on companies such as Google to stand on their rights under the DMCA instead of defaulting to taking down content in response to infringement notices, McSherry said. YouTube has fought many takedown demands as meritless, von Lohmann replied.
Marks acknowledged that copyright holders have misused the notices. He pointed to a famous video of a baby dancing to a Prince song and to efforts by Diebold to suppress circulation of internal memos about security flaws in its voting-machine technology. The flip side is that studios’ legitimate efforts to remove from the Internet full copies of movies often are fruitless “Whac-A-Mole” games, Marks said. Warner takes pains to “accommodate fair uses” instead of lowering the boom, he said. The studio asked only for a disclaimer that it wasn’t connected with a Yogi Bear parody showing Boo-Boo shooting the star character, Marks said.