YouTube has been much in the news lately. Around the time it was bought by Google for $1.65 billion, YouTube signed copyright licensing deals with CBS television and two record companies (UMG and Sony BMG). Meanwhile, its smaller rivals Bolt and Grouper were sued by the record industry for infringement.
The copyright deals are interesting. The first question to ask is whether YouTube needed the deals legally — whether it was breaking the law before. There’s no doubt that some of the videos that users upload to YouTube include infringing video and audio content. You might think this makes YouTube an infringer. But the law exempts service providers from liability for material stored on a server at users’ request, as long as certain conditions are met, including a requirement that the service provider take down material promptly on being notified that specific content appears to be infringing. (See section 512(c) of the DMCA.) Whether a site like YouTube qualifies for this exemption will be one of the main issues in the lawsuits against Bolt and Grouper.
It’s easy to see why CBS and the record companies want a deal with YouTube — they get money and greater control over where their content shows up on YouTube. Reading between the lines in the articles, it looks like YouTube will give them fairly direct means of taking down videos that they think infringe their copyrights.
But even if it faces no legal risk, YouTube might want to make these deals anyway. If users feel safer in posting CBS, UMG and Sony BMG content on the site, they’ll post more of that content, and they’ll face fewer frustrating takedowns. The deals might give YouTube users more confidence in using the site, which can only help YouTube.
Whether YouTube qualifies for the legal exemption is an interesting question for lawyers to debate. But in today’s copyright policy environment, whether a company is breaking the law is only one piece of the equation.