The digital titanic: The sinking of YouTube.com in the DMCA's safe harbor

Vanderbilt Law Review

Volumn 60, Issue 5, 2007, Pages 1559-1597

  Cloak, Trevor ^a  

^a NONE

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EID: 38749139928     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (215)

1. This website currently operates under the name of Crackle. Crackle Home Page, http://www.grouper.com (last visited Sept. 17, 2007).
2. Bolt.com recently took down its website after plans for a merger with GoFish fell through. Ellen Lee, Bye-bye Bolt, S.F. CHRON., Aug. 17, 2007, at D1;
3. see Bolt.com Home Page, http://www.bolt.com ("Please be advised that the operations of Bolt, Inc. and Bolt.com have ceased.").
4. Earlier this year, Bolt settled a copyright infringement action brought by Universal Music Group for $10 million. Lee, supra;
5. Caroline McCarthy, RIP Bolt.com: Social Networking Before We Knew What It Was, CNET NEWS.COM, Aug. 16, 2007, http://www.news.com/8301- 13577_3-9760877-36.html (last visited Sept. 17, 2007).
6. YouTube Home Page, http://www.youtube.com (last visited Sept. 17, 2007).
7. Id. (search for "Animaniacs" or "ZZ Top").
8. Patrick Goldstein, The People's Republic of YouTube, L.A. TIMES, Oct. 17, 2006, at E1. YouTube.com alone had over 72.1 million unique visitors in August 2006, compared to 8.1 million for Bolt.com and 1.8 million for Grouper.com. Universal Music Sues Two Online Video Sites, REUTERS, Oct. 17, 2006, available at http://www.webtechgeek.com/ NEWS/10-17-06/Universal-Music-sues-two-online-video-sites.htm.
9. Scott Woolley, Raw and Random, FORBES, Mar. 13, 2006, http://members.forbes.com/ global/2006/0313/027.html.
10. Id.
11. Jefferson Graham, Video Websites Pop Up, Invite Postings, USA TODAY, Nov. 22, 2005, at 3B.
12. Woolley, supra note 6.
13. See Goldstein, supra note 5 (discussing YouTube's success and noting that its "video clips are viewed more than 100 million times each day").
14. David Kirkpatrick & Brent Sohlender, The Future of Goo-Tube, FORTUNE, Oct. 30, 2006, at 32.
15. One week after purchasing YouTube.com, Google's stock increased $33.61 to $459.67 a share. Jefferson Graham, Google Profit Rockets on 'Very, Very Good' Business; Analyst Calls Search Giant's Quarter 'Amazing', USA TODAY, Oct. 20, 2006, at IB. Graham also notes that 'Internet analysts say Google could potentially be liable for expensive lawsuits from companies concerned about copyright infringement on YouTube. But [Google CEO] Schmidt said he has no such concerns." Id.
16. In fact, Universal filed lawsuits against Grouper.com and Bolt.com on October 9, 2006 alleging copyright infringement for "allowing users to swap pirated versions of its musicians' videos." Universal Music Sues Two Online Video Sites, supra note 5.
17. Universal sought up to $150,000 plus costs for each successful claim of copyright infringement by Grouper.com and Bolt.com, resulting in millions of dollars of damages. Id. Indeed, the Bolt.com suit recently settled for $10 million.
18. McCarthy, supra note 2. Viacom has also recently brought forth an infringement action, this one against YouTube, claiming $1 billion in damages.
19. Google Slams 'Sabotage Bid'by Viacom, EVENING STANDARD (London), May 1, 2007.
20. Digital Millennium Copyright Act of 1998, Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified in scattered sections of 17 U.S.C).
21. See Stephen A. Hess, Minesweeping the Digital Millennium Copyright Act "Safe Harbors," 33 COLO. LAW. 95, 95 (2004) (explaining the background of § 512 and stating that "[t]he 'safe harbors' set forth in § 512 exempt service providers from liability for copyright violations");
22. see also 17 U.S.C. § 512 (2007) (explaining the statutory criteria required for ISPs).
23. These requirements vary according to the activities in which the ISP engages. 17 U.S.C. § 512(a)-(d), (i).
24. Id.
25. See, e.g., Declan McCullagh & Anne Broache, YouTube May Add to Google's Copyright Worries, CNET NEWS.COM, Oct. 9, 2006, http://news.com.com/YouTube+may+add+to+Googles +copyright+worries/2100-1030_3- 6124149.html (discussing how § 512 is "murky," making it unclear whether YouTube is safe from liability).
26. 17 U.S.C. § 512(c)(1)(A)(ii).
27. Id. § 512(c)(1)(B).
28. See McCullagh & Broache, supra note 19 (discussing the fact that YouTube is currently in litigation for copyright infringement-one of many, some predict, unless YouTube changes its policies).
29. See Graham, supra note 8 (stating how one year ago, to post a video clip online free of charge one had to have knowledge of "computer code and [be] willing to post it on a personal website").
30. Id.
31. Id.
32. One study reports that from December 2000 to August 2003, broadband access among U.S. Internet users increased from 6% to about 30%. MARY MADDEN ET AL., AMERICA'S ONLINE PURSUITS: THE CHANGING PICTURE OF WHO'S ONLINE AND WHAT THEY DO 5 (Lee Rainie ed., 2003), http://www.pewInternet.org/pdfs/PIP_Online_Pursuits_Final.pdf.
33. Graham, supra note 8.
34. Goldstein, supra note 5.
35. Google Video, a video sharing Internet site created by Google prior to its purchase of YouTube, is one such example. Graham, supra note 8.
36. YouTube currently uses software that can identify pornographic videos, and has a staff in place to remove videos flagged by YouTube users as "objectionable." Woolley, supra note 6.
37. YouTube Strikes Content Deals, USA TODAY, Oct. 9, 2006, available at http://www.usatoday.com/tech/news/2006-10-09-youtube- deals_x.htm.
38. Id.
39. Just a few months ago, after being notified by a series of Japanese companies that more than 30,000 videos on YouTube were infringing copyrights, YouTube immediately removed them. Mark Schilling, Japan Org Warns YouTube, DAILY VARIETY, Dec. 7, 2006, at 30. YouTube also plans on removing over 100,000 clips owned by Viacom.
40. Catherine Holahan, Viacom's High-Stakes Duel with Google, BUS. WK., Feb. 2, 2007, available at http://www.businessweek. com/technology/content/feb2007/tc20070202_568443.htm?chan= top+news_top+news+index_busi nessweek+exclusives.
41. See, e.g., Schilling, supra note 33 (stating that YouTube removed infringing files when asked to do so by Japanese companies, but that the problem persisted).
42. Alex Veiga, Rise of a Copyright Auto-Cop, PHILA. INQUIRER, Oct. 22, 2006, at E06.
43. Id.
44. Id.
45. Id.
46. For example, clips to "The Office" can be accessed through searching by the characters' or actors' names, or even by the song connected to the video montage, which makes uncovering copyrighted materials more difficult. E.g., YouTube Home Page, supra note 3 (search for "Jim and Pam," "John Krasinski," or "You're My Best Friend") (last visited Sept. 17, 2007).
47. Ben Ratliff, A New Trove of Music Video in the Web's Wild World, N.Y. TIMES, Feb. 3, 2006, at El.
48. See Justin Berton, That Soft Blue Glow at Night May Not Be a TV Anymore, S.F. CHRON., Nov. 5, 2006, at Al (discussing the fact that online viewing may be the future of television, with Google the first step as the provider of such content by purchasing YouTube).
49. Pub. L. No. 94-553, 90 Stat. 2541 (1976) (effective Jan. 1, 1978).
50. 17 U.S.C. § 106 (2007). See Lucy H. Holmes, Making Waves in Statutory Safe Harbors: Reevaluating Internet Service Providers' Liability for Third-Party Content and Copyright Infringement, 7 ROGER WILLIAMS U. L. REV. 215, 227-28 (2001) (discussing the rights granted in § 106, and the three theories of liability associated with it-direct liability, contributory infringement, and vicarious liability).
51. See Pickholtz v. Rainbow Techs., Inc., 260 F. Supp. 2d 980, 989-90 (N.D. Cal. 2003) (discussing the distinction between direct and indirect infringement and claiming that action under one theory excludes the other if based on the same act).
52. 17 U.S.C. §§ 107, 501-06.
53. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000).
54. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).
55. Three Boys Music Corp., 212 F.3d at 481.
56. Although there is no statutory rule on indirect infringement, courts have accepted these common law theories to implement liability. See, e.g., Religious Tech. Ctr. v. Netcom On-Line Commc'n Servs., Inc., 907 F. Supp. 1361, 1373 (N.D. Cal. 1995) (accepting these theories of liability).
57. Id. at 1373-75.
58. See Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996) (holding that a flea market owner was liable for contributory infringement when he had knowledge of infringing activity going on because he provided the infringer, his booth operator, with the advertising, plumbing, parking, etc. that he needed to get patrons).
59. Religious Tech. Ctr., 907 F. Supp. at 1375.
60. Dreamland Ball Room, Inc. v. Shapiro, Bernstein & Co., 36 F.2d 354, 355 (7th Cir. 1929).
61. Id. (holding the owner liable because the music was being played "for the profit of the proprietor of the dance hall").
62. See infra Part III.A.4 (discussing the fair use defense).
63. One exception is telephone companies and other service providers that provided "wires," which allowed for the transmission of copies. Congress protected the wire providers by passing a "passive carrier" exemption. 3 MELVILLE B. NIMMER & DAVID NLMMER, NLMMER ON COPYRIGHT § 12B.01 (2006).
64. Id.
65. 839 F. Supp. 1552 (M.D. Fla.1993).
66. Id. at 1554.
67. Id.
68. Id.
69. Id. at 1556-57.
70. NLMMER & NLMMER, supra note 56.
71. Id.
72. 907 F. Supp. 1361 (N.D. Cal. 1995).
73. Id. at 1365-66.
74. Id. at 1367.
75. Id.
76. In fact, the court compared Netcom's copying to that of the owner of a copying machine who lets the public use the machine to make copies. Id. at 1368-69. Note that although causation is not an element required to show a prima facie case of copyright infringement, the court was stretching here to find a method to protect the BBS so that BBSs in general would be able to operate without fear of infringement.
77. Id. at 1374.
78. "The pocess to update U.S. copyright law with respect to digital transmissions began in February, 1993." S. REP. NO. 105-190, at 2 (1998).
79. Id.
80. RALPH S. BROWN & ROBERT C. DENICOLA, COPYRIGHT 463-64 (9th ed. 2005).
81. Id.
82. See NIMMER & NIMMER, supra note 56 (mentioning how "representatives of content owners met at length with representatives of service providers in an attempt to formulate new standards to govern this domain" and how initial lack of agreement between the two sides stalled legislation in Congress).
83. Indeed, the House Judiciary Committee report stated that the DMCA: [Essentially codifies the result in the leading and most thoughtful judicial decision to date: Religious Technology Center v. Netcom On-line Communications Services, Inc. In doing so, it overrules those aspects of Playboy Enterprises, Inc. v. Frena, insofar as that case suggests that such acts by service providers could constitute direct infringement, and provides certainty that Netcom and its progeny, so far only a few district court cases, will be the law of the land. Id. (quoting H.R. REP. NO. 105-551, pt. 1, at 11 (1998) (citations omitted)).
84. See Mike Scott, Note, Safe Harbors Under the Digital Millennium Copyright Act, 9 N.Y.U. J. LEGIS. & PUB. POL'Y 99, 99 (2006) (noting that "Congress recognized that this legal foundation needed to strike a delicate balance" between online service providers and copyright holders) (citing S. REP. NO. 105-190, at 21, 69 (1998); H.R. REP. NO. 105-551, pt. 2, at 21, 24-26, 58-59)).
85. S. REP. NO. 105-190, at 19.
86. "Section 512 is not intended to imply that a service provider is or is not liable as an infringer. . . . [T]he limitations of liability apply if the provider is found to be liable under existing principles of law." Id.
87. Termination is only required under "appropriate circumstances." 17 U.S.C. § 512(i) (2007).
88. Id.
89. These measures must also have been developed broadly by many different copyright owners, be available to all, and not impose substantial burdens or costs on the ISPs. Id.
90. Providers are protected so long as they are not responsible for initiating the transmission, the transmission is carried out by an automatic process, they do not select who receives the material, they do not allow the copies made to be accessible to anyone else, and the copied material is not modified in any way. Id. § 512(a). This provision is meant to protect ISPs such as AOL or NetZero, which provide users with access and connection to the internet.
91. Protection is granted so long as the provider is not responsible for posting the material online, the person who posted the material directs who is to receive the material, and the material is stored through an automated process. Id. § 512(b). This provision is meant to protect ISPs such as Yahoo, Google, and other search engines, which use software to automatically cache copies of websites for easier searching. See Parker v. Google, Inc., 422 F. Supp. 2d 492, 498 (E.D. Pa. 2006) (holding that Google was safe under § 512(b) for caching copies of websites for its search engine).
92. This protection extends so long as the service provider does not know that the material is infringing or is unaware of facts or circumstances that would suggest it was infringing, does not "receive a financial benefit directly attributable to the infringing activity," and, upon notice of infringing activity, "expeditiously" removes such infringing material from the site. 17 U.S.C. § 512(c).
93. Protection extends so long as the provider does not have actual knowledge of the infringing material, does not receive a financial benefit from the infringing activity, and, upon notification, removes the infringing material. Id. §512(d).
94. Playboy Enters. Inc. v. Frena, 839 F. Supp. 1552, 1555-59 (M.D. Fla. 1993).
95. Id. at 1556; see supra text accompanying notes 58-64 (stating the facts of Frena).
96. Although YouTube limits videos to ten minutes in length, many individuals get around this requirement by posting copyrighted material in ten-minute installments. Google Quizzed over YouTube Plans, BBC NEWS, Oct. 26, 2006, http://news.bbc.co.uk/go/pr/fr-/1/hi/uk_politics/ 6087976.stm.
97. See Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) (explaining the requirements for infringement).
98. See Goldstein, supra note 5 (noting that clips are viewed over 100 million times daily).
99. Indeed, this view has been followed by the Fourth Circuit. See ALS Scan, Inc. v. RemarQ Cmtys., Inc., 239 F.3d 619, 622 (4th Cir. 2001).
100. Religious Tech. Ctr. v. Netcom On-Line Commc'n Servs., Inc., 907 F. Supp. 1361, 1365-66 (N.D. Cal. 1995).
101. Id. at 1367-68.
102. Id. at 1383.
103. Id. at 1368-69.
104. Id. at 1368-70.
105. See supra note 76 (quoting the House Judiciary Committee that the DMCA was meant to overrule Frena in many respects).
106. See Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963) (extending the normal agency rule of respondeat superior to copyright situations "[w]hen the right and ability to supervise coalesce with an obvious and direct financial interest in the exploitation of copyrighted materials").
107. Id.
108. Id.
109. Id. at 307-09.
110. Id. at 306-09.
111. See, e.g., YouTube Home Page, supra note 3; Crackle Home Page, http://www.crackle.com (last visited Sept. 25, 2007).
112. See Google Quizzed over YouTube Plans, supra note 89 (noting that "video-sharing website's rapid growth has been partly down to the thousands of clips from old TV shows uploaded illegally by its users").
113. In MGM Studios, Inc. v. Grokster, the Supreme Court suggested that a similar business model "confirm[ed] that [Grokster's] principle object was use of [its] software to download copyrighted works." 545 U.S. 913, 926 (2005).
114. Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963).
115. 239 F.3d 1004, 1023 (9th Cir. 2001).
116. E.g., Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828, 857-58 (C.D. Cal. 2006) (denying a preliminary injunction against Google for vicarious liability for infringement), affd in relevant part, Perfect 10 v. Amazon.com, Inc., 487 F.3d 701, 731 (9th Cir. 2007).
117. Google, Inc., 416 F. Supp. 2d at 857-58.
118. Andy Beal, Google Gives-up Building Own YouTube Filters, Follows MySpace's Lead, Feb. 23, 2007, http://www.marketingpilgrim.com/2007/02/ google-gives-up-building-own-youtube-filters-follows-myspaces-lead.html (noting that "Google has signed a deal with Audible Magic to screen uploaded videos for copyrighted content"). This additional filtering system suggests that YouTube does have a greater "right and ability to control" its users' posted content.
119. In fact, the company deleted over 30,000 Japanese anime videos in a very short period of time upon notification that they were copyrighted. Associated Press, YouTube Deletes 30,000 Files After a Copyright Complaint, N.Y. TIMES, Oct. 21, 2006, at C4.
120. Woolley, supra note 6.
121. Beal, supra note 111.
122. See Gershwin Publ'g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971) (stating that "one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a 'contributory' infringer").
123. CoStar Group, Inc. v. Loopnet, Inc., 373 F.3d 544, 549 (4th Cir. 2004) (noting "[w]hile the Copyright Act does not require that the infringer know that he is infringing or that his conduct amount to a willful violation of the copyright owner's rights, it nonetheless requires conduct by a person who causes in some meaningful way an infringement").
124. 464 U.S. 417, 439-42 (1984).
125. Id. at 439.
126. See infra Part III.A.4 (discussing the requirements for a fair use defense).
127. Sony Corp. of Am., 464 U.S. at 442-47.
128. Indeed, this practice has continued since its sale to Google. See, e.g., YouTube Deletes 30,000 Files, supra note 112 (noting that YouTube deleted 30,000 files in response to a copyright infringement notice).
129. The substantial participation requirement is very easily met. Recall Fonovisa, Inc. v. Cherry Auction, Inc., in which a flea market operator was found to have substantially participated in infringing activity carried out by one of its booth renters when it merely rented the booth to the bootlegger, knowing that he was going to sell illegal copies. 76 F.3d 259, 264 (9th Cir. 1996); see supra note 51 and accompanying text.
130. In fact, YouTube has an information page providing copyright information to users because the site had received so many questions regarding the matter. YouTube Copyright Tips, http://www.youtube.com/t/howto_copyright (last visited Aug. 24, 2007).
131. Sony Corp. of Am., 464 U.S. at 456.
132. The "goals of the copyright law [are] 'to stimulate the creation and publication of edifying matter. Campbell v. Acuff-Rose Music, 510 U.S. 569, 578 n.10 (1994) (quoting Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1134 (1990)).
133. See Google Quizzed over YouTube Plans, supra note 89 (noting that "YouTube has signed content deals with entertainment giants CBS, Universal Music Group, Sony BMG, NBC and Warner Music Group").
134. Sony Corp. of Am., 464 U.S. at 443 (noting that because time-shifting enlarges the audience, "a significant amount of [the copyrighted material] may be used in this manner without objection from the owners of the copyrights . . .").
135. Substantial noninfringing uses can be negated if it is shown that an individual actively induced people to use his or her product to infringe. See MGM Studies, Inc. v. Grokster, Ltd., 545 U.S. 913, 936-37 (2005) (holding that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties"). Nevertheless, YouTube in no way actively induces people to post copyrighted files on its servers. It has an open policy against such posting, which suggests that it is not an active inducer.
136. 17 U.S.C. § 107 (2007).
137. Id.
138. For example, from about 1984 to 1994, factor four (market potential) was deemed by many, including the Supreme Court, to be the factor of most importance. See Sony Corp. of Am., 464 U.S. at 448-52 (discussing the importance of the fourth factor); Consumers Union of U.S., Inc. v. Gen. Signal Corp. 724 F.2d 1044, 1050 (2d Cir. 1983) ("[The fourth] factor is 'widely accepted to be the most important.' " (quoting Triangle Publ'ns. v. Knight-Ridder Newspapers, 626 F.2d 1171, 1177 (5th Cir. 1980))). Today, as discussed below, factor one (purpose and character of the use) is more important. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (noting that whether the purpose and character of a use is "transformative" is more important than whether the use has a market impact).
139. See Campbell, 510 U.S. at 579.
140. Id. (quoting Folsom v. Marsh, 9 F. Cas. 342, 348 (C.C. Mass. 1841).
141. Id. at 579-82.
142. Some users alter copyrighted pieces by adding their own commentary over them, mixing copyrighted songs with home videos, for example. See, e.g., YouTube Home Page, supra note 3 (search for "beatboxing flute super mario brothers theme" to watch a movie of a flute performance of the super Mario brothers theme, which is copyrighted by Nintendo) (last visited Sept. 18, 2007).
143. 17 U.S.C. § 107 (2007).
144. Campbell, 510 U.S. at 586.
145. Id.
146. See Haper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 551-52 (1985) (noting that the copying of unpublished works makes it difficult to acquire a fair use defense).
147. 17 U.S.C. § 107.
148. Campbell, 510 U.S. at 587. See also Harper & Row, 471 U.S. at 565 (remarking how taking the "heart of the book" was a substantial taking of a copyrighted book).
149. See Google Quizzed over YouTube Plans, supra note 89 (noting that YouTube allows the posting of clips up to ten minutes in length).
150. Id.
151. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984).
152. Today, however, this factor does not matter as much, considering that the court is more interested in looking at the transformative nature of a given work. See supra text accompanying note 131. It follows that something that is transformative per factor one will not have a substantial effect on the market for the copyrighted work because it will likely be in a market of its own.
153. 17 U.S.C. § 512(i) (2007).
154. 252 F. Supp. 2d 634, 658-59 (N.D. III. 2002).
155. YouTube Terms of Use, http://www.youtube.com/t/terms (last visited Aug. 24, 2007).
156. Aimster, 252 F. Supp. 2d at 659.
157. Id.
158. Id.
159. See Join YouTube, http://www.youtube.com/signup?next=/ my_videos_upload%3F (last visited Aug. 24, 2007) (directing nonmembers to create a YouTube account).
160. 17 U.S.C. § 512(i) (2007).
161. Id.
162. Id.
163. A LexisNexis search for "standard technical measures" retrieved only nine cases, all of which simply used the term when quoting the language directly from 512(i). None of these cases discussed "standard technical measures" in any detail. E.g. Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1115 (9th Cir. 2007); Ellison v. Robertson, 357 F.3d 1072, 1080 (9th Cir. 2004); Tur v. Youtube, Inc., No. CV 06-4436 FMC (AJWx), 2007 U.S. Dist. LEXIS 50254 , at *7-8 (C.D. Cal. 2007); Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1099 (W.D. Wash. 2004); Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1174 (C.D. Cal. 2002).
164. 17 U.S.C. § 512(i); see also NLMMER & NLMMER, supra note 56, § 12B.02 (discussing the likelihood that standard technical measures will come into existence).
165. In fact, the DMCA was enacted largely to '"balance copyright owners' interests in protecting their rights with the need to foster the Internet as an important medium of free expression, cultural exchange, and commerce.'" Jordana Boag, Comment, The Battle of Piracy Versus Privacy: How the Recording Industry Association of America (RIAA) Is Using the Digital Millennium Copyright Act (DMCA) as Its Weapon Against Internet Users' Privacy Rights, 41 CAL. W. L. REV. 241, 245 (2004) (quoting Verizon Internet Services Inc.'s Motion to Expedite at 5, Recording Indus. Ass'n of Am. v. Verizon Internet Servs., Inc., 257 F. Supp. 2d 244 (D.D.C 2003) (No. 03-7015)). The fact that it took legislative action to reach an agreement between copyright holders and ISPs suggests that similar action is required for there ever to be agreement as to what constitutes a standard technical measure.
166. 17 U.S.C. § 512(a).
167. Id. § 512(b).
168. Id. § 512(d).
169. Id. § 512(c).
170. Id.
171. See, e.g., Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1107-08 (W.D. Wash. 2004) (commenting that notice, although not required by the DMCA, is the principle way of showing actual knowledge and that it is difficult to prove such knowledge absent proper notice).
172. NLMMER & NLMMER, supra note 56, § 12B.04.
173. Corbis Corp., 351 F. Supp. 2d at 1107-08.
174. Id.
175. 17 U.S.C § 512(c)(1)(A)(ii).
176. NIMMER & NIMMER, supra note 56, §12B.04;
177. see Costar Group, Inc. v. Loopnet, Inc.,164 F. Supp. 2d 688, 702-03 (D. Md. 2001) (accepting the "red flag" test).
178. NIMMER & NIMMER, supra note 56, §12B.04.
179. Id. (quoting S. REP. NO. 105-190, at 44 (1998)).
180. Corbis, 351 F. Supp. 2d at 1108 (quoting H.R. REP. NO. 105-551, pt. 2, at 42). Nimmer even quipped that "the 'flag' must be brightly red indeed-and be waving blatantly in the provider's face-to serve the statutory goal of making 'infringing activity . . . apparent.' " NIMMER & NIMMER, supra note 56, §12B.04.
181. NIMMER & NIMMER, supra note 56, §12B.04.
182. This section provides that "upon obtaining such knowledge or awareness, [an ISP must] act expeditiously to remove, or disable access to, the material." 17 U.S.C. §512(c)(l)(A)(iii) (2007).
183. Id.
184. See supra Part III.A.2 (discussing vicarious liability).
185. 17 U.S.C. §512(c)(1)(B).
186. NIMMER & NIMMER, supra note 56, §12B.04; but see Costar Group, Inc. v. Loopnet, Inc., 164 F. Supp. 2d 688, 704 (D. Md. 2001) (noting that because §512(c)(1)(b) codified both elements of vicarious liability, Congress intended there to be no protection for vicarious infringers). The Fourth Circuit, however, in affirming the outcome in Costar, mentioned that vicarious and contributory infringing ISPs could "still look to the DMCA for a safe harbor if it fulfilled the conditions therein," Costar Group, Inc. v. Loopnet, Inc., 373 F.3d 544, 555 (4th Cir. 2004), which suggests that the DMCA does protect vicarious infringers to some extent.
187. NIMMER & NIMMER, supra note 56, §12B.04 (quoting H.R. REP. NO. 105-551, pt. 2, at 54 (1998)).
188. Id.
189. Indeed, for there to be a "direct financial benefit" under vicarious liability, the court must ask only "whether there is a causal relationship between the infringing activity and any financial benefit a defendant reaps, regardless of how substantial the benefit is in proportion to a defendant's overall profits." Ellison v. Robertson, 357 F.3d 1072, 1079 (9th Cir. 2004). See also ASM Records v. Napster, Inc., 239 F.3d 1004, 1023 (9th Cir. 2001) (noting that because Napster's future revenue was "directly dependent on 'increases in user-base,' " and because "[f]inancial benefit exists where the availability of infringing material 'acts as a "draw" for customers,' " Napster was found to receive a direct financial benefit from infringing activity in the context of vicarious liability (quoting Fonovision, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 263-64 (9th Cir. 1996))).
190. Although the Ninth Circuit in Napster held that this type of system constituted a direct financial benefit under the theory of vicarious liability, Napster, 239 F.3d at 1023, it is likely that, given the stricter requirements imposed by §512(c)(1)(b), the court would find that this was not enough to constitute a direct financial benefit under this section.
191. "Congress could not have intended for courts to hold that a service provider loses immunity under the safe harbor provision of the DMCA because it engages in acts that are specifically required by the DMCA." Hendrickson v. EBay, Inc., 165 F. Supp. 2d 1082, 1093-94 (C.D. Cal. 2001).
192. 17 U.S.C. § 512(c)(1)(C) (2007).
193. "Lazy Sunday," a Saturday Night Live skit, was removed from YouTube in January 2007 after the site was asked to pull the video. Jason Pontin, Millions of Videos, and Now a Way to Search Inside Them, N.Y. TIMES, Feb. 25, 2007, at 33;
194. see also Associated Press, supra note 112 (commenting on YouTube's removal of 30,000 Japanese videos).
195. See Viacom Peeved About Clips on YouTube, CBC NEWS, Feb. 2, 2007, http://www.cbc.ca/technology/story/2007/02/02/tech-youtube.html (noting that even after YouTube removed a clip in September 2006, "the clip still appeared periodically as users kept reposting it," which suggests that YouTube was having problems with its copyright filters "designed to prevent the unauthorized distribution of copyrighted materials").
196. Congress has remarked that notification is not required for an ISP to be required to expeditiously remove infringing files. See NIMMER & NIMMER, supra note 56, §12B.04. Nevertheless, as discussed above, notification is the key way in which actual knowledge (and even apparent knowledge in many circumstances) is attributed to the ISP so as to even be required to remove files in the first place.
197. 17 U.S.C. § 512(c)(1)(C).
198. See supra Part III (commenting on YouTube's liability under traditional theories of copyright and under the DMCA's safe harbor provisions).
199. A "mash up" is "[a] new sound recording produced entirely of preexisting sound recordings." Aaron Power, The Mouse That Roared: Addressing the Post-Modem Quandary of Mash-Ups Through Traditional Fair Use Analysis, 8 VAND. J. ENT. & TECH. L. 531, 532 (2006). This practice can be done with video files as well.
200. 17 U.S.C. §106.
201. For example, almost three months after searching for Animaniacs videos on YouTube for this note's introduction, the same video clips are still present.
202. Viacom Confronts YouTube on Videos, INT'L HERALD TRIB., Feb. 3, 2007, at 13.
203. Google/YouTube, therefore, should be more willing to pay for these licenses as well. Recently, negotiations between the company and Viacom broke down, after which Viacom, having joined with another VSI, ordered YouTube to remove over 100,000 videos which contained Viacom's content. Id.; see also Dan Mitchell, Sharing the Wealth at MTV, N.Y. TIMES, Feb. 24, 2007, at C5 (noting that Viacom left its deal with YouTube in favor of another company, Joost).
204. Join YouTube, supra note 152.
205. See supra Part III.B.2(b) (discussing right and ability to control).
206. One drawback of implementing digital signature technology to locate copyrighted files, as YouTube plans to do, Beal, supra note 111, is that a court may view this action as taking on more of a right and ability to control the posted content, thereby opening YouTube to liability under §512(c)(1)(b).
207. "[T]he economic philosophy behind the [Copyright] Clause ... is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors." Eldred v. Ashcroft, 537 U.S. 186, 212 (2003) (quoting Mazer v. Stein, 347 U.S. 201, 219 (1954)).
208. "Many of YouTube's most widely watched videos already include copyrighted music, raising the specter of a legal showdown with record labels and artists seeking to protect their right to be paid for the material." Michael Liedtke, YouTube, Warner Music Sign Deal, S. FLA. SUN-SENTINEL, Sept. 19, 2006, at ID.
209. Note that although new video sharing internet sites could fill the void left behind if YouTube were to go bankrupt (much like Morpheus did after Napster was shut down), eventually all of these sites would likely be subject to the same liability and therefore shut down (as Morpheus did a few years after Napster), forcing major changes in the business model of these companies. Such new models could mirror that of iTunes and the new Napster, charging users a fee to post videos and access copyrighted material. Although the forum would still remain open, it likely would be hampered severely.
210. See supra Part III.B.l (discussing these threshold eligibility requirements).
211. 17 U.S.C. §512(c)(1)(B) (2007).
212. See Steven Hetcher, The Half-Fairness of Google's Plan to Make the World's Collection of Books Searchable, 13 MICH. TELECOMM. & TECH. L. REV. 1, 71-76 (discussing the transaction costs associated with orphan books).
213. Note, however, that there exists a "plausible argument" that infringers of "orphan" books should be free from liability via fair use defense. Id.
214. Wendy J. Gordon, Render Copyright Unto Caesar: On Taking Incentives Seriously, 71 U. CHI. L. REV. 75, 90 (2004).
215. Id.