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Are YouTube Above the Law?

by Adam Shore

on 1 May 2012

Tagged in: Web

Comments: 4 comments

A German court recently ruled that YouTube must take down copyrighted music clips. The ruling is another setback for Google after a US appeals court agreed to reopen a £620m case over copyrighted videos brought against YouTube by media giants Viacom, as well as the Premier League and other media companies.

Gema, a German royalties group, won the case against the Google owned media site on Friday 20^th April in Hamburg. The significance of the ruling is that the ‘website (YouTube) was responsible for the content its users published’.

There are countless ramifications of this, with the potential for royalties having to be paid and the knock on effect for all user generated content platform. There are far too many to outline in this post, however as we consult for a firm of solicitors who deal with extradition, the ruling did get me thinking about and comparing with the case of Richard O’Dwyer.

O’Dwyer is a 23 year old from Sheffield who the US Justice Department is seeking to extradite from the UK to face trial for alleged copyright infringement on his website TVShack.net. If you’re unaware of TVShack.net, it allowed people to watch "Movies, Television, Anime, Music and Documentaries" online.

According to the site itself it was a “simple resource”….going on to add “All content visible on this site is located at 3^rd party websites. TV Shack is not responsible for any content linked to or referred from these pages”. The site was simply a conduit to other sites that already existed on the web, much like Google is. O’Dwyer is charged with conspiracy to commit copyright infringement and criminal infringement of copyright, both charges carry a sentence of 5 years.

Like TVShack did, YouTube generates revenue through advertising; and the amount generated is likely to be significantly more when you consider the number of users and videos on YouTube. Where YouTube differs is that it enables users to upload copyrighted material to their servers for other people to view. According to the terms and conditions this is prohibited, but everybody knows it’s going on and they actively do very little to enforce this prohibition. With over 60 hours of video uploaded to the site every minute and over 30 billion hours of video watched each month, I appreciate it’s nigh on impossible to regulate all of this; but just because it’s too big to police, and Google are a huge corporation, does not mean they should go unpunished and indeed continue to profit through advertising. Whether they are doing it knowingly or not, this seems very much akin to harbouring stolen goods.

I’m not arguing that O’Dwyer is innocent, I’ll leave that up to the legal experts, but surely YouTube is committing a greater crime by actually storing illegal content on their servers?

Not being an expert on copyright, internet or extradition law I accept I could be completely missing something here. However, from the articles I have read, and on the face of it, the US government seems happy to flex their international muscles over the UK without actually getting one of the biggest players in their own house in order.

Comments

Casual User 1 May 2012 21:41

Insightful article. It will be very interesting to see how things unfold in years to come.

Companies arguing that their material is being 'stolen' do little to grow the appeal for customers to use ligitimite sources of digital distribution. There is little promotion done and much besides being cheaper, it is often easier and quicker to use illegal sites to obtain the digital goods. Further to that, copyright owners themselves often make deliberate and free choices not to sell it to us. I'm talking about regional restrictions. WTF?

I for one appreciate the need to protect the interests of the owners of copyright material. Unfortunately our society doesn't seem to regard breach of copywrite as unacceptable. I quote my favourite piracy advert when I say 'You wouldn't steal a car'... My answer : No, I wouldn't steal a car, but then I can't download a car in seconds in my living room.
Thanks for the read Adman

Adam Shore 2 May 2012 09:57

Another good article about Google being "above others - even Governments" in the Guardian.
http://www.guardian.co.uk/technology/2012/may/01/google-street-view-data-fcc

Nabbit 2 May 2012 12:10

The war on downloadable content and copyright laws continues. I blame Metallica and that whole Napster debacle. Nice one.

Christi 2 May 2012 19:32

The interesting fact about the O'Dwyer extradition is that it's based on the rather dubious premise that having a .com, .org or .net domain in some sense makes it a crime committed in the US, even though the servers have no physical presence in that country. Not having seen the actual decision I'm unable to comment further.

Another pertinent difference between Google and O'Dwyer is that nature of the infringement is different because of the difference between file sharing and web hosting. Google provide no facility to download files, and are in some sense not distributing their user's content. O'Dwyer by contrast was facilitating what, from a legal perspective at least, was a more serious violation of the IP rights of the respective owners. Obviously different countries have different IP regimes and what is a civil or criminal wrong will differ from jurisdiction to jurisdiction. To try to make a useful analogy, think of Google as running a massive lending library full of DVDs contributed by the users. Some of those DVDs are 'pirated', but Google isn't really encouraging or facilitating that. By contrast, O'Dwyer was compiling a massive list of places where as many people as they liked could go to grab their own copy of a bunch of DVDs. The vast majority of these were not being copied with the permission of their users. (This is still a simplification, but it does indicate the difference in quality between the two acts, and this is even before we get into so called "safe harbour" provisions.)

It's a very rapidly developing area of law, and much will depend upon the specific circumstances of each case. Obviously the safest approach is not to allow your users to upload user generated content, but failing that the harder you make it for people to use your site for illegitimate purposes, the safer you're likely to be.