"Eurosports" versus YouTube

Here's the text of my recent post on the international IP-Sharing website:

On March 11, 2009 YouTube submitted a motion for summary judgment against Viacom’s various claims of copyright infringement. But the motion isn’t aimed only at Viacom. YouTube is simultaneously moving to dismiss plaintiffs’ claims in a “related” action, in which the UK’s Football Association Premier League Ltd., the Féderation Française de Tennis, and a collection of smaller US music publishers allege many of the same claims found in Viacom’s briefs and motions.

This related action has gotten less press than the Viacom suit, but it’s already raised some interesting issues of its own, particularly involving the French and UK plaintiffs. First, Judge Stanton (overseeing both suits in the Southern District of New York) agreed that the foreign plaintiffs, unlike the US claimants, didn’t need to have registered the allegedly infringing works with the US Copyright Office prior to bringing suit. Nothing surprising there: this exception is written explicitly into the copyright statute. So for foreign plaintiffs like Premier Football and the FFT, registration isn’t a requirement to bring a lawsuit. Eurosports 1; YouTube 0.

But…there’s more to registration than getting in the courthouse door. If a plaintiff hopes to recover the hefty statutory damages written into the Copyright Act (potentially in the hundreds of thousands of dollars, if not more), the work has to have been registered not only before bringing suit, but also before the infringement even occurred. Judge Stanton ruled that there was no exception for foreign plaintiffs here. They can bring suit, but they can’t recover statutory damages. Eurosports 1; YouTube 1.

But wait. There’s one more exception to the requirement for pre-registration: live broadcasts. Congress recognized that it’s impossible to register something like a sports match for copyright protection before it’s been taped, so a content owner can theoretically bring suit and recover statutory damages if a website copies and distributes a live broadcast of a sports program. Eurosports 2; YouTube 1.

But…bad news for Eurosports: you only qualify for the “live broadcast” exception if you notify the potential infringer in advance. Setting aside the obvious question of how one identifies all possible infringers in advance, the notification has to be very detailed and meet a list of incredibly specific requirements. It’s easy to issue an advance notice that’s disqualified on technical grounds. Moreover, the plaintiffs’ complaint didn’t specifically say that they had served this advance notice. YouTube noted in its motion to dismiss that plaintiffs’ complaint didn’t mention any “Advance Notices of Potential Infringement.” Eurosports 2; YouTube 2.

However…Judge Stanton then notes one of the supplementary affidavits submitted by Premier Football’s IP counsel Oliver Weingarten. According to Weingarten, he had served on YouTube “more than three hundred and forty four ‘Advance Notices of Potential Infringement’” before sports matches that were nevertheless posted on YouTube shortly after airing. What do you know? Someone in Europe read Section 201.22 of the Code of Federal Regulations. The Judge deemed the plaintiffs’ complaint to incorporate all of the relevant information from Weingarten’s affidavit. Eurosports 3; YouTube 2.

It’s clear that there are common issues between the Viacom case and the class-action suit, but the Premier Football action has its own peculiar international element; we’ll have to see what the court’s ruling will mean for the European sportscasters.

IP Sharing

I've been asked to serve as the "foreign correspondent" for the US by a group of much more qualified international IP commentators on the "IP > sharing" website.

My first post is a response to my colleague Hendrick Jan POT, who pointed out the very embarrassing revelation that Viacom, suing YouTube for knowingly profiting from illegal content, was posting its own videos disguised as user-generated content. Viacom's viral marketers were apparently not communicating very well with in-house counsel.

I felt the need to add to Jan's post, rightly critical of Viacom, with some unsavory revelations from the YouTube / Google side.

Here's a link to Jan's post, and a copy of my response below:

Viacom v. YouTube: More than One Smoking Gun

Another point of view to supplement Hendrick Jan Pot’s entry on the Viacom / YouTube court documents unsealed March 18.

Viacom’s uploading its own content looks bad, but doesn’t directly affect the legal issues in the case. YouTube’s not now presenting an “unclean hands” defense; instead, it’s now saying that the presence of authorized content made it impossible for it to recognize unauthorized content. The argument’s meant to bolster claims of good-faith compliance with the DMCA, and to suggest YouTube wasn’t trying to profit from infringement. It was just the victim of infringement’s ineffable unknowability.

Some embarrassing revelations from the YouTube side undercut these claims.

Co-founder Steve Chen admits 80% of YouTube’s value is due to illegal content, but says the founders’ aims were to “build…up our numbers as aggressively as we can through whatever tactics, however evil.” According to co-founder Jawed Karim, the goal was to build a giant user base and cash out. “Our dirty little secret…is that we actually just want to sell out quickly.”

Internal memos show resistance to removing content for fear of losing traffic. One suggests taking down illegally uploaded movies and television shows, but leaving “comedy clips (Conan, Leno, etc)” and music videos, presumably until forced to take them down. Chen tells one worrier: “I really don’t see what will happen. what? someone from cnn sees it? he happens to be someone with power?”

The documents also show amnesia on the part of parent Google on its purchase of a site that might be profiting from illegal content. According to Viacom, co-founder Larry Page “disclaimed memory on any topic relevant to [the] litigation.”

Viacom’s uploading of its programs disguised as user-generated content is an embarrassing revelation, but legally, YouTube’s documents (suggesting a policy of knowing profit) will probably prove more damaging.

Source: Here