Singularity Law » YouTube

Viacom: Hey Google, What About Us?

Professor Scott — Fri, 14 Nov 2008 04:05:20 +0000

Several weeks ago now, Google announced the settlement of a copyright infringement case filed against it by a group of American publishers who objected to the Google Book Search project. (I recently wrote about the settlement here.) The Google Book Search project has the goal of digitizing virtually every book ever published, and making that database searchable. The plaintiffs had objected both to the digitizing, which involved wholesale copying of complete books, as well as displaying the search results, which they argued constituted further copying (and therefore infringement). Google based its defense entirely on the fair use doctrine under Section 107 of the Copyright Act (17 U.S.C. §107).

The settlement has Google paying the book publishers $125 million in exchange for essentially a perpetual license to digitize and store all of their books now in existence, as well as future books that they may publish. It places strict limitations on Google’s ability to display books that are in-print and in-copyright, but allows Google to not only display portions of out-of-print, but still in-copyright books, but to sell access to those books. Google can charge for access to the digital version of those books, and will be allowed to retain 37% of all revenues generated from the sale of those books and certain advertising revenues it may generate as well. In exchange, the publishers will dismiss their infringement action, and since it was filed as a class action, the settlement will bind both the named plaintiffs but all other U.S. publishers as well, unless they opt out.

This settlement has not gone unnoticed by Viacom, Inc., which also has a major copyright infringement suit pending against Google. Unlike the publishers’ case, the Viacom action involves the posting of Viacom owned videos on YouTube, a company owned by Google. Executives of Viacom are quoted as saying, basically, that since Google settled the publishers’ case, there is no reason it shouldn’t settle with Viacom (and pay Viacom a hefty settlement fee as well). While Google might decide to do so, if it made business sense to do so (as it did in the publishers’ case), the two cases have very little in common, other than the fact that they both involve Google as a defendant and they are both copyright infringement cases.

The Viacom case did not arise from a direct infringement by Google (or YouTube) of any copyrights owned by Viacom – which was the claim in the publishers’ case. Instead, the Viacom action seeks to hold Google liable for third party postings of Viacom videos on the YouTube website. Instead, of having to fit its actions under the fair use doctrine of copyright law, whose reach is very fact-specific, in the Viacom case, Google is able to take advantage of the DMCA “safe harbor” provisions, which immunize Google from any liability, as long as it complies with the requirements of the DMCA. While Viacom is arguing that Google cannot take advantage of the “safe harbor” provisions, that is an uphill battle that Viacom is likely to lose.

These are two very different lawsuits based on two very different provisions of U.S. copyright law. While Google may decide to settle with Viacom for business reasons, or Viacom may be able to convince a judge that Google is not entitled to the protections afforded by the DMCA, the two cases are entirely unrelated. Viacom is taking a big chance by pursuing this case, since of it loses, it will open the floodgates to having its videos posted all over the Internet (even more so that today). It is Viacom that should be looking for a way out of this mess it has gotten itself into, not Google. And you can be sure that any settlement entered into will be much more favorable to Google than to Viacom. (IMHO).

The Singularity Law Podcast Episode 4: The Elephant in the Room

Professor Scott — Mon, 20 Oct 2008 03:48:32 +0000

Will DRM be the final nail in the coffin of PC gaming? How anonymous can the Internet be? Why won’t YouTube grant a full legal review of all DMCA takedown requests on election campaign videos? Will trademark owners be forced to monitor domain name registrations? Can libraries go digital? Can a record label infringe its own copyright? Michael and Josh tackle these questions and more on this week’s edition of The Singularity Law Podcast.

Click the play button below to listen, or click here to subscribe to us on iTunes!

Here are the show notes for this week’s episode:

Shownotes for The Singularity Law Podcast: Episode 4 for October 19, 2008

Our Panel for Today:

Josh Kagan, author of The Josh Kagan Blog
Prof. Michael Scott of The Singularity Law Blog

DRM and Activation in Video Games

EA’s CEO speaks to Gamasutra about DRM.
Ars Technica: EA’s DRM, arrogance may cause gamers to skip good titles

Anonymity on the Internet

Google and YouTube refuse to grant special DMCA treatment to McCain Campaign Videos

Cybersquatters: The Hidden Trademark Danger

Trademark Owners Must Pursue Cybersquatters or Potentially Lose Their Trademark Rights
Southern Grouts & Mortars, Inc. v. 3M Co., 2008 WL 4346798 (S.D. Fla. Sept. 17, 2008)
Southern Grouts and Mortars v. 3M Co., Second Amended Complaint

The Elephant is in the Library: Digital Libraries Online

Universities launch elephantine digital library

Final Thoughts: Can a record label infringe its own copyright? One hosting provider thinks so.

Record Label ‘Infringes’ Own Copyright, Site Pulled

The Power of the ‘Net (and the Heck With Copyright)

Professor Scott — Sat, 24 Jun 2006 21:17:15 +0000

My son, also named Michael, is a budding filmmaker (alright, so is half of LA). About three years ago, when he was a junior at UCLA he and a friend made a short fan film for a Star Wars fan site. The video (called Ryan v. Dorkman) featured a laser sword fight including special effects and sound effect. The video was a modest hit on the website and generated some special effects work for Michael.

Fast forward three years. . . . In April 2006, someone (no one knows who) began posting the video all over the ‘Net. It appeared on Google Video, Youtube, and a number of other sites. Within about 10 days it was #2 on Google Video. And as of today, it has generated over 577,000 viewings on YouTube. Obviously, a flagrant violation of copyright laws. And yet. . .

As a result of all the buzz created by the postings, the boys have had development meetings with a film company, have been contacted by a major talent agency, etc. They are just finishing up a new short film (not a fan film) and have other projects in the works.

What are the lessons from all of this?

First, sometimes the value of a project is not in the copyright per se, but in the promotional value of having the work widely available. Lawyers often have an itchy trigger finger to blast everyone with a barrage of cease and desist letters. But probing deeper, the infringement may be a blessing in disguise. (Of course it helps that these postings were done as a homage to the great work these two did, and not to profit from their works unfairly.)

Second, it shows the power of these emerging collaborative content sites, where the website owner creates the framework and others fill it will content — some compelling, most not. Pre-Internet, a film maker would need to mail out copies of a videotape with a cover letter to anyone who might be interest. Most of these packages wouldn’t make it past the mailroom or would suffer an ignominious demise in the round file (trash can). Today, innovative companies are scouring web sites for new talent. These collaborative content sites have the potential to radically change the way that talented newcomers get in front of agents, publishers, music/movie producers, etc. It becomes less of a “who you know” model for getting to the right people, and more of a “how good are you” model.