Media Industry’s Push against Network Service Providers

One of the largest and most closely-watched intellectual property disputes in the United States right now is the lawsuit that Viacom, a major media company, filed in 2007 against Google. This is a copyright case, not a patent case, but it has major implications for the types of technologies that will be valuable in curbing copyright infringement in the digital age. Many such technologies had their core patents granted ten or more years ago, and many of the patentees went through periods of trying to sell their technologies but finding that those who wanted online copyright enforcement (media companies or content owners) were generally not willing to pay for the technology.  Thus, much of the potential for monetizing these technologies is now arising out of patent licensing rather than technology product sales.

A key question being decided in the Viacom vs. Google litigation is which copyright enforcement technologies will be mandated by law and who will pay for them; the noted cyberlaw expert Jonathan Zittrain of Harvard Law School called this issue the “gravamen” of the case.

The last couple of weeks saw a development in the litigation that should set the stage for decisions to be made at high court levels in the U.S. that have the potential to change the law, and thus change the outlook for certain technologies. On June 23, Federal district judge Louis Stanton granted summary judgment in favor of Google in the case.  In his 30-page opinion, Judge Stanton found that YouTube is covered under the safe harbor specified in section 512 of US copyright law, which was enacted as part of the Digital Millennium Copyright Act in 1998 (leading to the nickname “DMCA 512″ or more simply 512).  The DMCA was primarily enacted to bring the United States into compliance with the WIPO Copyright Treaty of 1996.

DMCA 512 states that a network service provider such as YouTube (which is owned by Google) can avoid copyright infringement liability for content posted on its site if it responds to properly-formed takedown notices from copyright owners by removing the content in question.  This law is often mischaracterized as “Websites are legally obligated to respond to takedown notices.”  They aren’t actually obligated to take content down when asked; they just avoid secondary liability for copyright infringement if they do so. Many are calling this decision (which means that the case will not go to trial) a victory for Google and a defeat for Big Media.  But that is hardly the case. In fact, it’s quite possibly the outcome that Viacom was hoping for.

As I noted last October, Viacom should not have wanted to win this case at the lower court level.  Its preferred outcome ought to be to get the law changed so that website operators like YouTube have the responsibility to ensure that unauthorized copyrighted content doesn’t go up in the first place.  Certain technologies such as video fingerprinting are necessary in carrying out this responsibility.

District courts don’t normally change laws; higher courts do.  There are various examples of Supreme Court decisions that have changed the course of copyright law in the U.S., including Sony v. Universal (known as the “Betamax” case for the videotape format involved) in 1984, New York Times v. Tasini in 2001, and MGM v. Grokster in 2005.  Even appeals court decisions such as RIAA v. Diamond Multimedia (“Diamond Rio,” 1999), Universal v. Reimerdes (2000), and  A&M v. Napster (2001) have had major effects on copyright.

Of course, Viacom intends to appeal the case up the legal chain.  It is worth noting, however, that Judge Stanton relied heavily in his opinion on the recent district court opinion in Universal Music Group v. Veoh, in which Judge Howard Matz similarly sided with the website operator by asserting that it did enough by complying with 512 takedown notices.  The media industry’s push to hold network service providers and website operators more responsible for protecting copyrights has not stopped and will not stop here.

Bill Rosenblatt, IPEG consultant, GiantSteps Media Technology Strategies

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