What? What?...Fair Use That's What!

A federal district court judge in Wisconsin has ordered Brownmark Films to pay Viacom and Comedy Central more than $30,000 in attorney's fees after finding that their case alleging copyright infringement was as worthwhile as their "hit" YouTube video, "What What (In the Butt)." If you haven't seen the video and need a good "what the hell is this crap?!" give it a watch here: But (not butt), the more interesting thing to my musical ear is the striking similarity to an old Eddie Murphy song called "Boogie in You Butt." If Samwell and Brownmark really believed in their case and it wasn't just your typical Hollywood extortion, maybe they should get ready to defend a copyright infringement suit coming the other direction. Turnabout is fair play when it comes to "in the butt" videos, right? And yes, I seriously posted this.

Google and Viacom Battle Continues...Good News for the Rest of Us!

Viacom Friday filed an appeal in its copyright case against YouTube (now owned by Google) in which a June opinion from the Southern District of New York held that YouTube was not liable for widespread infringement due to users' copious uploads of copyrighted material, including movies, music videos, etc. owned by Viacom properties. The continuation of this suit is great news for the Internet-going public and website operators as it will further clarify the safe harbor provisions of the Digital Millennium Copyright Act with respect to Web 2.0 content.

Section 512 of the DMCA - a frequent topic on this blog - provides a bar to the liability of "online service providers" for the acts of infringement of its users. This bar, or "safe harbor," requires, among other things, that the OSP act as a mere conduit of information (i.e. don't change or filter the content), provide processes for notification of alleged copyright infringement and promptly comply with its policies by removing or disabling access to the allegedly infringing content.

Any YouTube user who hasn't been living under a digital rock has run across the not-uncommon "This video is no longer available due to a copyright claim by XYZ Inc." notification. Clearly YouTube is responding to DMCA takedown notices from copyright holders. Is this enough? If YouTube knows that users are uploading in mass quantities copyrighted content of third parties, is YouTube required to filter content at the upload stage or otherwise do more to stop this activity? The further judicial review of the Viacom case will solidify the checklist of responsibilities for website owners displaying any third party content. The case will certainly continue to be costly for the media giants involved, but the clarity that may result from it for the rest of us will be the true benefit...and likely worth every penny to all involved. (The losing side when this case is done may not share my opinion.)

YouTube Happy with Veoh's Win, But Not Off the Hook in Viacom Litigation

A recent district court decision in which a San Jose judge ruled that YouTube competitor Veoh was not liable for copyright infringement based on infringing material posted by users is being batted about in the blogosphere and the news media in hopes of gleaning some insight into any affect it may have on the outcome of the pending Viacom v. YouTube litigation.

The ruling is clearly a win for Veoh and a good sign for YouTube, but not dispositive of the YouTube/Viacom litigation in any way. While the San Jose court's decision may be persuasive to the judge in the YouTube case, it is not binding precedent.

The Digital Millennium Copyright Act (DMCA) provides a safe harbor for service providers as long as they act as a "conduit," meaning they do not select or modify the content that is transferred. They also have to respond to take-down notices from copyright owners. While the Veoh court has clearly said that Veoh falls within the safe harbor, there are still other cases out there (such as the Aimster case) that say turning a blind eye to wrongdoing does not excuse you from liability. And more importantly, Viacom can still rely on the Supreme Court's holding in Grokster, which hinges on "intentionally inducing or encouraging direct infringement." If Viacom can convince a judge that YouTube's business model is based on encouraging users to upload infringing content in order to attract more users to the site, the fact that YouTube later responds appropriately to take-down notices may not absolve them of liability.

Bottom line, YouTube is very happy with the Veoh decision, but it doesn't necessarily affect the outcome of the Viacom/YouTube suit.

For articles regarding the Veoh decision, see:

• Washington Post
  
• AllHeadlineNews