Jenny Lynn Cox: The topic for this evening's discussion is the Viacom YouTube Litigation as a jumping off point for a broader discussion of section 512 of the Digital Millennium Copyright Act. Probably, commonly referred to by many as a Safe harbor provision for avoiding online infringement liability. In following introductions we are going to give you a brief background on section 512 followed by a factual background at the Viacom YouTube Case. Then our panelists will answer several questions related to specific issues raised by the litigation in section 512 more generally. Following that discussion we will have Q&A with the audience. So, first on my right is Professor Tyler Ochoa, a member of our faculty here at Santa Clara Law School, he is a leading scholar in copyright law, co authoring one of the leading case books and speaks frequently on a wide range of topics in copyright law. Next to him is Mindy Morton, who practices intellectual property and business litigation at the Law Firm of Bergeson, LLP in San Jose. She has represented companies in securities, first amendment and commercial disputes including the representation of a leading file sharing company in his dispute with the recording industry. Next to Mindy is Fred von Lohmann, a senior staff attorney at the Electronic Frontier Foundation. He has represented programmers, technology innovators and individuals in a variety of copyright and trademark litigation. Before joining EFF, Fred was a visiting researcher at Berkley Center for Law and Technology and prior to that appointment was an associate at the Law Firm of Morrison & Foerster. So to get this started, I am going to ask Professor Ochoa to give us a brief background on section 512.
Tyler Ochoa: Okay. Well, the story of section 512 really goes back about 15 years to to the commercialization of the internet, so beginning between 89 1989 and 1991, the protocols for the world wide web were invented. The http, html the Hypertext Markup Language, urls all invented in this time period and that paved away for commercialization of the internet. So we started to see ordinary users, ordinary people using the internet, and on large numbers for the first time. As part of that, you will see some people who would post copyrighted works of others on to websites or servers or space or on to bulletin boards that were automatically distributed to a number of people and copyright owners were understandably upset about that they wanted to define some way they shut down this infringing activity. But instead of just suing the people who were doing the posting, they went after internet service providers, the people who provided the connections for the internet that made this infringement possible right so an internet service provider might provide a bulletin board service that automatically transmitted messages to other people who had signed up for the bulletin board and what they said was well you know, your computers are the ones that are doing the copy, right. Your computers are the ones that are sending out this data all over, you are liable for copyright infringement because copyright was traditionally strict liability statute. In 1995, we had a court decision that substantially rejected that argument that's religious technology center versus Netcom online communication services, it's a district court decision from up here in the northern district. And what the court basically said was well, yes copyright is traditionally strict liability but this is an automated technical process, right you know, it isn't - they are not affirmatively transmitting anything through an element of human relation, right they have just set up a system where they transmit all messages, it's the person who is using the system he should be directly liable, not the person who has set up the system. So no direct liability for automated copies made by computers owned by Internet Service Providers absence some evidence of relational causation, but Contributory Infringement that carries liability were still possible if the elements of those were met so once the service provider was notified of the alleged infringement, they then had knowledge were on notice and could be held liable for contribute Contributory Infringement. Vicarious liability was possibility if they had the right and ability to control the infringing activity and they had to have a direct financial benefit that wasn't met in the Netcom case. Now there are other courts that disagreed with Netcom, but I think it's fair to characterize Netcom as a leading case. And in 1998, service provider successfully lobbied congress to get a statute that partially but not completely quantified the Netcom approach. And the statute creates four Safe harbors for Internet Service Providers and the idea here is it's a limitation of liability, says that service provider is not liable for monetary relief and only very limited injunctive relief. If it needs these particular criteria, one of these four Safe harbors, then it's not liable for for remedies for copyright infringement. So the four Safe harbors are transitory, digital communications, caching, web hosting and information location tools. So start with number subsection A which is the transitory digital network communications so called conduit liability. So you are not liable for transmitting, rounding or providing connections for material that goes through a system or network that's operated by the service provider or for you know, intermediate storage that occurs on that network provided you meet five conditions that somebody else initiates the transmission, it's an automated technical process, somebody you are not selecting the recipients to the material, you are the service provider. You are not making that intermediate transient copies ordinarily available to anyone else and you are not modifying the content. So that's that's probably the the broadest of the four Safe harbors but it applies only to a limited number of service providers. The second Safe harbor is for caching, intermediate and temporary storage of material so what you have is you know, somebody wants to see a website right so they sent a request to the computer that hosts that website they sent some data back and that gets interpreted by your browser and put up on your computer. But that you know, it take some time to go and get the data and come back. It's much easier if intermediate computers along the way just store temporary copies of the data. So that you don't have to go all the way to the host website every time you want the data you can just go to a local website, it's got a cache copy a duplicate copy of the data. And it's used to facilitate facilitate access to it. Okay, so you have got a Safe harbor if you are doing this caching if you meet in this case it's eight different criteria right. The material is made available online is made available by somebody else it's transmitted through the direction of somebody else, the storage is carried out through an automated technical process again system caching. It's transmitted without modification you comply with generally accepted standards for reloading and refreshing the material so the web site says they should be refreshed every you know, every five minutes, you know, then you going to get a refreshed copy of refinements etcetera. You are not interfering with any information that would ordinarily be returned, you are complying with any conditions on access such as faster protection on fees and if you get to notice that something is claimed to be infringing you take it down. That's the so called notice and takes down provisions, it applies to the subsections B, C and D we will talk more in detail about that in the course of the evening. Some section C is the Safe harbor for a Web Hosting. Right, if you are simply making space available on your server for somebody else to post things right you know, so storage at the direction of a user of material that rely resides on a system or network controlled by the service provider. We have got a bunch of conditions here, right. One is a condition that has to do with what kind of knowledge the service provider has? If the service provider does not have actual knowledge that the material is infringing, is not aware of the facts or circumstances from which infringing activity is apparent we are going to have to talk about what that means or upon obtaining such knowledge awareness acts expeditions so they have to take down the material. Right, so it's like you don't know, that it's infringing, you are not you don't have you are not on strong incurring, she don't have good reason that you suspect or be aware that is infringing and as soon as some body tells you its infringing you take it down right? You do not receive a financial benefit directly attributable to the infringing activity, and if you have a right ability to control that's the same test as it is for vicarious infringement, I know Fred who want to talk about that. And once you notify the client infringement you got to moving, especially quickly to take it down. Now this is the whole procedure in there for what has to be in the notice. I am not going to go into detail about what has to be in the notice right now, or we can talk about that in the course in the evening. Okay, okay and then for the Safe harbors Information Location Tools. This is linking users, hyperlinks that link users to an online location or indexing or direct to is a reference something that you know, search engines like Google clearly provide Information Location Tools, indexes like yahoo and so forth, and the same three conditions that are applying to Web hosting under C also applying to information location tools under D. Okay, now the notice and take down provisions are quite complex, what they say is, if a copyright owner send you a complaint notice that identifies infringing material in your system. Then in order to get the benefit of the B, C or D Safe harbors you got to immediately disable access to that content, right. Move that content from your system and disable access to it immediately, right. Then you send a copy of the notice to the user who posted that content or who is linking to that content, right or who is cashing that content and then and then you tell them who was he? Yeah you don't if sent the notice because of the cash if it is if it is cash you are doing your self. But in case you send a notice to the user he is posted to the infringing content you tell him, okay this is been taking down because of this, right. If you think that this is been an error, you can sent us a counter notification, right. And if they sent you a counter notification within ten within ten to fourteen days right, then you have to put the material back up, unless the content provider has filed suit against the allegedly infringing user. And if the content provider gives you notice that the files suit against the allegedly infringing user, then the material stays down, in effect it is the equivalent of getting a preliminary injunction with out having to get a court order to do that. My experience is that users really don't use the counter notification system very often. What you have is content providers providing section 512C notices and if their complaint notices or some times even if they are not, the service providers are taking stuff down and typically it staying down. Okay, in order to get the benefit of this the service provider has to comply with certain conditions he got to meet the definition of service provider, will talk about what that is in the courts at the evening and in addition the service provider has to do two things one of which is easily met. You have to accommodate and not interfere with any Standard Technical Measures that are applicable to protect copyrighted works. Well, that is easy because right now there aren't any Standard Technical Measures. They have to being they have to being adopted according to a procedure where there is input from all source of affected people. Really nothing out there other than you know sort of the standard, no archive or Hyper Text Protocols stuff. So that's no problem. The other one and this is the subject of lot of allegation is they must have adopted and reasonably implemented a policy that provides for the termination in appropriate circumstances of users that are repeat infringers right. So you know what is it mean to a reasonable implemented policy, what are appropriate circumstances, who are repeat infringers, lots of vassal visual language in there, there fore lot of litigation. Okay, so that is the summary of the major provision of section 512C and we can talk about some of the details as we go along, but hopefully they gives you a background of what we were talking about.
Jenny Lynn Cox: Thank you very much Tyler. So Fred can you give us some back ground on the Viacom versus YouTube and Viacom versus Google case.
Fred von Lohmann: Sure. So I first I want to thank Tyler for doing a wonderful job, summarizing I just want to add one other piece of back ground before I describe the lawsuit. Why it is that these Safe harbors matters so much to the companies who are seeking to remain with in them. For those of who were copyright litigators this will come as all news to you, but for those who don't practice regularly in this area often folks forget be remedial and of the copyright stick and there are statutory damages provided in copyright law that provide a minimum of seven hundred and fifty dollars per work infringed irrespective of any showing of actual harm to the copyright owner. So imagine for a moment that you are a YouTube or any other company that posts user generated content or host user generate content I should say, and you could potentially be seeing tens of thousands, hundreds of thousands, potentially millions of nominal infringement that may occur that would create a mandatory, statutory damages of what that would basically put any company on the planet out of business and so that is the one very real risk that motivates companies to try to shield them selves from even a small likelihood of liability. The second issue that people often forget is that there is really no such thing as a corporate veil when it comes to copyright infringement liability. Officers and directors of companies have routinely been held liable for as vicarious infringers and contributory infringers in a number of cases that have been reported and then in fact in cases like the Napster case, the CEO and even investors have been named in copyright litigations. So not only that you see rule in the statute images but it could potentially reach individual assets and so that is an important piece of context to keep in mind as we talk about these Safe harbors and why it is I think that these Safe harbors have essentially acted as huge magnets for investment in web to point out companies. If you are in the Safe harbor you are likely to get funded if you are not you are not like to get funded and we can talk about whether that is a good or bad thing but I think it is it is what it is. So let me talk about this law suit but in some ways has been emblematic of the tensions that have reasoned between service providers and copyright owners and the DMCA Safe harbor Context. Viacom along with a number of its subsidiaries sues YouTube in March of 2007, seems hardly seems as though this case has been gone on for ever, but in fact it is really been with blink of an eye as litigation goes. Filed in the Southern District of New York assigned to Judge Stanton there and the complaint is actually quite interesting reading to any one who is familiar with the DMCA Safe harbors, the 26 odd pages of the complaint, really are a road map for the suite of arguments that copyright owners I think use to attack assertions of the Safe harbor, every thing is in there, right and it is clearly written to sent that message obviously you could put together a complaint like this I could probably do it inside of ten pages no no trouble and meet requirements of rule 8. Somebody went to the trouble of writing 27 very careful detailed pages here in this case the law firm of general block don't for really is the lead counsel, the same my adverse counsel in the Grokster Case, I keep telling him he should be sending me you know presents for all the business making him for you know beating me in that case. So in that complaint and just so we were get both sides of this Google which had acquired YouTube shortly before this laws whose was brought has hired David Kramer, Wilson Sonsini here in in Silicon Valleys sort of the lead counsel on the other side. So let us talk briefly about kind of the the heart of the complaint. As as all of you no doubt know YouTube is hosting millions of short form video creations on behalf of millions of users around the world. Copyright owners are troubled they are concerned by the fact that many users rather than up loading original creativity of there own, have chosen instead up load segments of their favorite television shows, there favorite movies, in some circumstances they may include copyrighted music things of that kind, and so what the complaint essentially says is that YouTube is benefiting commercially directly as a result of these infringements, and so as you read the allegations you see very vividly the the ways in which Viacom intends to attack the applicability of the Safe harbors. So just a lay out the basic allegations, the allegations are, that Google and YouTube are infringing the public performance right, the public display right and the reproduction right and that they are doing so directly, contributorily, vicariously and by inducement. So pretty much the whole deck of cards, all the potential claims that are possible are in there. They specifically alleged that YouTube knows and intends that these infringements should have occur, so this goes to this issue of whether there is actual knowledge, which will disqualify a service provider from the Safe harbor. It also goes to the issue of so called Red Flag Knowledge which the DMCA says if you are aware of acts and circumstances from which infringement should have been apparent you will also lose this Safe harbor, another disqualifier, and there is the complaints specifically says in fact uses that legislate of term that is in the legislate of history in the DMCA says YouTube is aware of red flags going on quote that should have made the ongoing infringements obvious. They also specifically say that YouTube has failed to take any precautions to reduce the amount of infringement arguing that there are things that they could have done, and in fact arguing that they have taken steps to reduce infringements for companies with whom they have a business relationship, arguing that in fact what Google is doing here is using the availability of Copyright Filtering Technology as a god to force to copyright owners into into deals. They say that Google is directly profiting as a result of this and controls the infringements pointing out that Google terms of service are YouTube's terms of service specifically grant to Google the right to remove videos at any time they like variety of other standard levels of control that's pretty typical for the terms of service for a free service like this. They specifically talk about the fact that the availability of videos on YouTube harms their ability to license that same material into other online channels things like Juiced for example. And another competing online video distribution service, they say that undermines their ability to exploit these works on their own websites, pointing out that comedy Central for example makes some of the daily show clips available in its own website. They interestingly as Tyler mentioned the outset the DMCA Safe harbors applied four particular functions, so called conduit function, caching, hosting and linking, loosely Information Location Tools but loosely understood as linking. You see in the complaint of very clear effort to characterize YouTube's activities as not being not those four things, no surprise they specifically talk about the fact that YouTube transcodes videos after they are uploaded. So whatever format your video may be in after you uploaded to YouTube, YouTube translates that into a common format which then uses for all its videos they also point out Google displays ads, they displayed the YouTube logo, they have a unique interface that they provide, I read all of these as efforts in the complaints to say that whatever else may be true about the Safe harbors YouTube here is be outside the limits of just the four functions, as I sometimes counsel clients, you always have to worry that one limb will be hanging outside the blanket right? Because the copyright owner will go hunting for anything you do that arguably does not fall within the four functions, and that's what you can expect the fire to be concentrated right on whatever it is that apparently falls outside those four functions. They specifically attack a number of YouTube features, and one is the private sharing feature which some of you may know you can upload a video and only make it available to people you denominate as your clinical friends Viacom characterizes these as hidden videos by which they mean hidden from Viacom's Copyright Investigator. And they alleged that this is YouTube's effort to make it more difficult for them to police the YouTube site. They also point out that YouTube permits embeds and sharing. So anyone who has used YouTube has probably seen these you can embed the YouTube video in another website so to pierce that is on that site in a blog for example and in fact its streaming direct from YouTube. Again the argument on the part of Viacom is that essentially is allowing YouTube to facilitate infringements that evade the ability of Viacom investigators to find them because again the infringements happening on some blog rather that easily searchable on the YouTube homepage. They also point out that the sharing feature allows users to email essentially watch these video here again the argument is these makes it easier for infringers to get the word out but harder for investigators to locate, there are also two other items that they find worth mentioning in the complaint, one is YouTube's ability to remove pornography from the site, there have been several people who have argued well if you can remove porn why cant you remove copyright infringements the one implies - that the power to do the one implies the power to do the other. Again I think going to these question of whether they have control, control over the infringements combined with the financial benefit it is one of the disqualifiers as Tyler mentioned the outset. Finally they argue that they the YouTube fails to block returning recidivist infringers that these users even if they are identified and kicked off YouTube for infringement can come back and just register a new account. And this again I think again to anyone who is versed in this area of law immediately raises the question of YouTube's ability to satisfy the policy of terminating of repeated infringers which is a requirement under section 512-I. So again everything in the compliant as I think carefully crafted to point at what Viacom believes are our weaknesses in YouTube's Safe harbor defenses. So very briefly let me tell you what has happened since the case was filed bringing it's all up-to-date. First Viacom has continued to sent DMCA take down notice as by the bushel as it where as the Tyler mentioned under the DMCA Safe harbor for hosting which is the one that I think everyone expects YouTube to principally be sheltering within, you must have a notice and takedown policies such that copyright owners can notify you of infringements and you would promptly remove those infringements from your site. Well Viacom has taken this challenge quiet seriously and delivered one hundred thousand takedown notices in a single day. And in fact since those times since the march they have filed publicly they acknowledged sending over a 160000 takedown notices to YouTube one assumes that number probably larger than that the 160000 numbers from some months ago now. But I do know from conversations with Viacom's general council that they admit that the number the incidence of infringements of their works on YouTube have dramatically declined since they began this take down campaign and he said that for whatever set of reasons perhaps the we got out perhaps we managed to weed out the most persistent posters of our material that for better for worst they have said that their DMCA take down policing efforts are much less onerous than they were before this entire adventure began. So make of that what you will because of course one of the arguments in the Viacom's complaint is that it is you know impossible or unfair for the copyright owner to they have to shoulder the burden of finding and sending takedown since their view that its inadequate solution to the problem there is at least some empirical evidence suggested main article been quite as inadequate as Viacom alleged originally. Now of course they still have to be paid full time staff do nothing with search YouTube and from their perspective that's a burden that they would like to minimize that will talk a bit more about that. Since this Viacom massive was filed there have been a number of other lawsuits filed against YouTube largely with the same allegations several style that's class actions and there is in essence a process of consolidation in STNY and in front of Judge Stanton going on right now. So there is a rather infamous helicopter pilot in the Los Angeles area named Mr. Tier and Tier had actually been has the honor and the distinction of being the first to sew YouTube, he is the only law suit copyright law suit on in this base I am aware that it was filed before the acquisition went through with Google. And so he started the first lawsuit on the field as I am aware but he has in recent months moved tried to get his case consolidated with the class actions in the New York, Judge Florence-Marie Cooper in Los Angeles appears to be going along with that, so he may find his action rolled-up with New York class actions. There was also a song writer's class action brought in Tennessee and that also has been moved I think it he was dismissed in Tennessee and those sets of plaintiffs have now moved to join the class action in New York. The class actions have been brought on behalf of song writers initially, the N-M-P-A, National Music Publisher Association has been sort of leading that, and the that sort of class the lead class council in that actions as Proskauer Rose in New York, and they basically have been joined by a host sort of an array of plaintiffs that are little that boggle the mind quite frankly, I didn't realize that the you just take a few examples the UK Rugby Football League cares very much about this problem and they are among the leaders there, and also the English Premiere Soccer League, a number of other sports related entities and its just really been a host of rights holders who have kind of piled on in the New York actions, And so we basically see this case grinding forward in New York. It's in discovery as far as I am aware that have been noticed positive motions filed yet, they have been there has been, I am sure that there will be a great deal of discovery tussling as that thing moves ahead. In the mean time we have Google announcing last week, I believe the implementation of a new Video Filtering Technology, home grown apparently developed with in Google, and as I understand and we can talk more about its details as this evening goes on, but the basic idea is they will be comparing the video content of videos as they are up loaded to a reference database of finger prints essentially that seek to match the the content that included in the video with any of the reference data that is submitted by copyright owners to the database. So there is sort of two parts here, the copyright owner must first submit a referent to the database in order for it to be checked against and then the second piece is when users up load videos, those videos will be you know, processed and then compared against the reference database and this is something Google says is it's live now ready to go there is a process of copyright owners who would like to submit reference Google suggests that you simply up load all your content to Google, and they will take care of that for you as one copyright one lawyer who represents the copyright industries put in my business that's called Hutzba and they will also you know apparently update that, as their technology improves you will automatically get the benefits of those improvements if you have done that. I have no idea how many right holders have yet agreed to do that although Google I know is working with some pretty major right holders as kind of pilot project, pilot participants in the project if you will. And Viacom by the way has said they find this this effort well commendable entirely inadequate and so there is no sign yet that this filter by it self will result in any dismissal or settlement of the litigation, and finally just this week actually there was an announcement of something called user generated content principles, that were announced by coalition of a number of very large media companies and we see Universal, Fox, Viacom, - I am forgetting couple of others, the pretty big that sort of a the coalition of the leading large media players who have complained about this this difficulty of infringement and all of them on the board at least seriously serious set of them and also some members of the User Generating Content service provider world including those prominently My Space, of course a unit of Fox, and so perhaps not entirely disinterested in this. Microsoft which as some of you may ask why Microsoft has a video hosting site? Apparently they do and and also VAIO which is a smaller user generated called the Video Hosting site and so these principles are available at ugcprinciples.com I believe and sort of lay out from the copyright owner side these these media companies and that the other technology companies involved what they view as being adequate, so that pretty much brings a up to date the laws of continuous and the badgering I guess as just begun.
Jenny Lynn Cox: Oh, I think you know, for starting that easy with soft balls I am going to volunteer for those. Who
