One week after Google announced it was buying YouTube, several media companies have banded together to investigate whether YouTube is vulnerable to legal action over copyrighted material on its site.
According to the Wall Street Journal, lawyers from several media companies, including News Corp., NBC Universal and Viacom, say that YouTube could be liable up to $150,000 per unauthorized video. Executives hope the possibility of legal action could prompt YouTube to improve terms it offers the media companies.
I’m no legal scholar, but I’m not sure what the media companies are thinking here. According to the EFF’s Fred Von Lohman, YouTube is covered by the safe harbor protections of the DMCA, which says companies that responsibly remove infringing content and do not induce users to upload that content are not liable.
Assuming the media lawyers believe that safe harbor protections apply, then legal recourse would be limited to arguing that the amount and frequency of views on copyrighted content renders safe harbor protections moot. In other words, so what if an infringing piece of content is removed–if it’s already been viewed 100,000 times, the damage is done.
Another possible argument: YouTube passively induces users to upload copyrighted content because its most-viewed videos contain that content. If you look on the first page of YouTube’s top daily videos page, you see that copyrighted content accounts for a sizeable percentage, maybe 5 to 10 percent of what’s there. (When you zoom out to the “all time top videos” page, you see copyrighted content is less pervasive.)