Examining Google's Inheritance: Robert Tur v. YouTube
Psst, hey you, the one addicted to blogs and secondary sources. Wanna see an original document? Then come check out the original complaint in Robert Tur v. YouTube, case number CV 06-4436-GAF (FMOx), filed July 14, 2006 in United States District Court, Central District of California.
Besides, there's so much bunk and bloviating blatherskite around the Internets, I thought it might be a small service to distribute the original court document so you can judge for yourself the merits of the case. After all, isn't this the DIY generation?
Below, Tur's argument, followed by the specific claims for relief.
BTW, for all you who like to castigate the media for its salacious coverage of disaster porn, you may find a favorite target in Mr. Tur. The complaint lists several of Tur's videos that were on YouTube, including "Beating of a man in brown hatchback with rescue," "Beating of man in white panel truck," "Earthquake," and "North Hollywood Shootout."
Tur's argument against YouTube
- Robert Tur owns and operates the Los Angeles News Service (LANS). According to the lawsuit, he was first on the scene for the O.J. Simpson car chase and the only one to videotape the Reginal Denny beating during the 1992 riots.
I clearly remember where I was when the OJ chase came on the tube: An Applebee's on Broad Street in Richmond, Virginia. There's a lot to be ashamed of in that admission, but I promise I haven't been to Applebee's since.
- Tur has won a Peabody, several Emmies (Emmy's?), and the Edward R. Murrow Award for broadcast excellence.
- Tur has litigated against assertions of fair use before in at least three cases: LANS v. CBS Broadcasting (2002), LANS v. KCAL-TV (1997) and LANS v. Tullo (1992)
- Tur's attornies cite the Grokster case, "which ostensibly provides clear limits to the abuse of copyright infringement via the Internet by means of contributory infringement."
- Infringement on YouTube has occured on a substantial scale (5,500 views of the Reginal Denny beating at time of filing.)
I tend to think this portion of the argument has legs. To take the devil's advocate position, how is the DMCA useful to copyright owners if the content is viewed thousands of times before it is removed under safe harbor provisions?
- "Like Grokster and Napster before it, YouTube directs its maket development to the youthful user base familiar with sharing digitized audiovisual media."
Possibly true, but this is a bad argument. YouTube directs its almost non-existent marketing (if mere presence online can be interpreted as marketing) to no one in particular. I would argue the people who are familiar with digital technology happen to be younger, but happenstance doesn't a marketing plan make. Besides, one of the more popular series of videos on YouTube is by this man, an octogenarian. Why you gotta bring the kids into this, Bob?
- Unlike Grokster, "YouTube's business model allows it to have actual knowledge of what particular copyrightable files are being distributed, played and copied through its service."
Which is why YouTube assented to creating a digital fingerprinting system for its partners. However, that system can't be retroactively applied to the "damage" perceived by Robert Tur. I wonder -- is there a danger here, that if the court decides there was damage to Tur's interest, they YouTube be liable to compensate him? And if so, will that open the door to lawsuits against YouTube from before they established their fingerprinting technology?
- YouTube's principals know that copyrighted material is being shared.
- Tur alleges that YouTube previewed its service in February 2005 (pre-Grokster) as a "personal video sharing service." YouTube then launched and grew into "the leading video entertainment destination on the Internet."
- Tagging videos makes it harder to identify copyrighted work.
I think this is an important point too. Tagging subsitutes a new user-generated taxonomy that doesn't correlate with any established taxonomies, such as copyright numbers. I think it's feasible that a court will someday mandate that companies such as YouTube keep an internal database that associates user-generated tags with copyrights. Fact, I wouldn't be surprised if something like that is part of YouTube's aggreements with its partners. Once you establish fingerprinting technology, it only makes sense to track how users are self-defining your content.
- YouTube aimed to satisfy the market for copyright infringement, which was comprised of former Grokster users.
I hope Tur's attornies have internal YouTube biz plan docs to prove that allegation. Otherwise, that's pretty tough to prove.
- YouTube has big data centers.
It's not explicitly stated, but I assume Tur's attornies are implying that YouTube doesn't need big data centers if its users are only sharing home videos. That's a silly argument, since user-generated content is growing faster than professionally-generated content.
- YouTube's business model relies on advertising.
i.e., in Tur's case, they're making money off the back of other's content.
- YouTube can handle 110 video formats and 64 audio formats, thus making pirating content easy.
Oh c'mon. Ease of use = piracy? This is really a bad argument for Tur's lawyers to make, since it's already been established that the technology itself isn't to blame for piracy.
Copyright Infringement and Unfair Business Practices
- An infringement occurs every time a video is uploaded
- An infringement occurs every time a video is viewed
- Plaintiff is entitled to damages, YouTube's profits from the infringements, and attorney's fees
- Tur is entitled to statutory damages of $150,000 for each work infringed, or other amounts as determined by copyright law (17 U.S.C. 504(c))
- permanent injunction against YouTube