In a case fast approaching being titled “The Entire World v. YouTube,” NBC has announced plans to file an amicus brief in the suit alleging copyright infringement against YouTube for allowing users to upload copyright protected content. YouTube is a popular video-sharing site that was recently purchased by Google for $1.65 billion dollars.
This matter features two interesting subplots. First, we see one of the most common elements of mass copyright infringement actions, the classic “user v. distributor” liability question. Attempting to assign blame to the distributor, compared to the users, is a routine argument by plaintiffs in agency actions because it is easier to track down and monitor the actions of one large entity compared to hundreds of thousands of unique and often anonymous users.
The plaintiffs further allege that YouTube’s popularity is heavily based upon free access to otherwise protected content, much like Napster and Grokster were at the height of the illegal file sharing days of the late 1990s and early 2000s. Because the popularity of this content benefits the site by way of additional advertising revenue, the site would not be overly motivated to remove it.
The plaintiffs also allege that the site does just enough to avoid being considered completely negligent in its policing of the available content. NBC and its friends suggest that YouTube takes the “wink, wink, nudge, nudge” approach to its warnings. That is, the warnings are posted and content is occasionally policed, but that YouTube’s true interest is in “looking good” for the courts when matters such as this suit arise, as opposed to having a true interest in protecting intellectual property interests.
YouTube defends its actions by noting that it has several safeguards in place, including posted warnings to its users. The site also argues that it routinely removes copyrighted content uploaded by its users.
In most cases, the liability is somewhere in between the extremes, but the “public policy” interest suggests assigning the burden to the entity best equipped to handle it. In this case, YouTube is that entity, and one would expect that the plaintiffs will eventually prevail in their requests for greater policing of the content on the video sharing site.
The second issue of interest is the unwritten subplot of major media against Google and its strong business expansion in the last several years. Traditional media companies are publicly and privately sweating Google’s growing power in the entertainment and ad industry. The pressure applied by the plaintiffs in this case is as much a statement about their respective long-term viability in the changing advertising marketplace as it is about protecting their copyrights.
Bottom Line: Google and YouTube can expect to be ordered to tighten their reins over the content posted to the site. While users may be more to blame than the site itself, YouTube is best equipped to provide additional safeguards. The plaintiffs will win the suit, but can also expect to get a boost in the equally important court of public opinion for prevailing against the red-hot Google behemoth.