Hypocrisy and iFilm
Since the Viacom lawsuit against YouTube is primarily an attack on the DMCA, whether its notice and takedown procedure is too burdensome on copyright owners, it's interesting to note that the DMCA protects Viacom's online video sites as much as it protects YouTube.
Only days after Viacom sued YouTube, many people have said "Hey, wait a minute. What about iFilm?" iFilm after all is a video hosting site much like YouTube and one of the destinations to which Viacom is trying to funnel people so they can watch the $1 billion worth of Daily Show and Colbert Report clips they were previously watching on YouTube. The funny thing is that for all of Viacom's bemoaning that YouTube is not following the law, the fact is that Viacom would be equally culpable for infringing videos on its site.
Ars reports today that there are infringing videos on iFilm, specifically video from the Knicks-Nuggets brawl earlier this season. If these videos are up without the permission of the rights holder, than it certainly appears the Viacom is asking a court to hold YouTube to a standard that it doesn't adhere to even on its own site. Quite damning indeed.
However, some red flags arise with the Ars story. I spent much of yesterday searching through iFilm for infringing videos and came across a few curious observations. First, videos on the site indicate the user that submitted the video, but the videos that Ars points to don't have a user name attached. This leads me to believe that a clip uploaded by iFilm itself doesn't include the user identification, as can be seen by this clip from the Office (which I presume Viacom has the right to put up). If that's not the case, then I wonder why the NBA clips don't have a user id. The DMCA requires a site to bar users deemed to be repeat infringers, a duty that gets complicated if you can't track down what your users upload.
In some of the clips I can across that I found suspect (and also some of the more interesting clips), they seemed to be uploaded by iFilm insiders. This montage of 80's cartoons is a classic example of benign infringement, technically copyright infringement without any real harm because it doesn't really hurt the copyright owner, was uploaded by the user dhammond. After some snooping, I'm confident that this dhammond is this Doug Hammond, who appears to work for iFilm and has appeared on TV promoting iFilm and its zany video clips. What about all his videos? Did he get permission from Maury Povich before putting clips of his appearance on iFilm? What about the cartoon montage and his other clips? Plus, what does it say about a video sharing site (one that is supposed to "compete" with YouTube) when employees masquerade on the site as regular users?
If it turns out that iFilm employees are posting infringing material, iFilm would certainly be liable for the infringement and would be a bad act, possibly even opening iFilm up to liability for inducing others to infringe copyright.
I don't work at iFilm nor do I work at any video sharing site, but as a law student devoted to IP and the Internet, I have difficulty in assessing what videos are allowed to be on iFilm and what are not. Viacom is a huge company with lots of properties so it's difficult to say what they own the rights to. It's also difficult to know with whom they have deals with. There are lots of Law and Order clips on iFilm, but what's the status on those? This should only highlight the difficulty that a site has in identifying infringing material and is why the DMCA is right when it says that a website should not be held liable if it's not 100% effective in blocking these clips and puts the onus on reporting infringement on the rights holders themselves. Who is in a better position to judge whether a video on iFilm infringes, me or Viacom?
This is not to say that infringing videos do not exist on YouTube. In a display of civil disobedience, Gawker media uploaded clips from Oprah to iFilm. Now, Oprah is made by CBS so whether or not CBS clips are allowed to be on iFilm is probably a non-issue given that it used to be owned run by Viacom. But the point is that a random user recorded live TV and uploaded the clip. That's the rub and what Viacom criticizes YouTube for not policing better. Clearly, Viacom has not structured iFilm in such a way that is "better" than YouTube: both sites allow users to post whatever they want. Or so it appears.
In the Ars article that is mentioned above, it said that Viacom had responded to the hypocrisy charge and comparisons between iFilm and YouTube:
First, if it's true, then any infringing material that does make it through the human filters has the potential to void iFilm's safeharbor status under DMCA 512(c). A site can only invoke the 512(c) safeharbor if it doesn't know that infringing material has been uploaded by a user. The relevant provisions here are 512(c)(1)(A)(i) and 512(c)(1)(A)(ii), which say that the safeharbor only applies when the defendant:
While screening an infringing video may not give iFilm actual knowledge that video is infringing (who owns it? who's uploading it? etc.), it seems that iFilm would have constructive knowledge that the video infringes copyright. Using the Oprah clip as an example, ignoring the fact that Viacom might end up having to sue itself, an iFilm screener should know that Oprah is the kind of clip that someone would own and that shouldn't be uploaded without a proper licensing deal. If iFilm uploads it anyway, it is now "aware of facts or circumstances from which infringing activity is apparent." After all, they saw the clip, had a moment to consider its legality, and uploaded it for public consumption. Bye-bye safeharbor.
Because of this knowledge problem, it can rightly be said that the DMCA doesn't require, and even encourages sites not to police what their users upload since if they do, once they find something that looks like it may infringe copyright they must remove it to maintain their safeharbor. No where in the DMCA is there an affirmative duty to police against infringement. Viacom is annoyed by this alleged failure in the DMCA and would prefer that YouTube follow the same kind of screening measures as iFilm does, which would be one way to resolve their lawsuit. That's nice, but that's not what the law says, and even worse it's amazing to think that in making its point about how a respectable video sharing site should operate, Viacom would actually jeopardize its safeharbor standing by having a human filter. So much for taking the moral high road.
Second, if iFilm does use a human filter and copyrighted videos make it through, the further implications of that could be a big problem. In its complaint, Viacom alleges that YouTube induces users to infringe copyright. I have discussed the inducement claim to some extent already, and how inducement is really a bad intent test, but here we can see how a court could find that iFilm "induces" infringement. If iFilm is letting copyrighted material through its human filter, it could be argued that any errors are not really errors at all and that iFilm has allowed certain clips to evade its filters in order to draw more users. This may be a stretch, but really no more of a stretch than the inducement claim against YouTube.
As has been said, the DMCA protects all sites equally so long as they behave according to the statute and protects YouTube as much as it protects iFilm and Viacom. What Viacom does with iFilm should be relevant to a court because it goes to show the larger picture of how difficult it can be to identify infringing videos, the extent that an independent website is equipped to make such copyright determinations, and the also the intellectual honesty that Viacom is bringing in its complaint against YouTube. Viacom may well think that this hypocrisy is required given the current state of the law, how its unfair to rights holders and that iFilm's policy should be what the law condones (and not YouTube's), but that's for Congress to decide. It's not the court's job to overrule Congress because Viacom is no longer satisfied with following the law because it's too much work.
As an aside, and not that I want to induce others to infringe copyright, it would really be something if there was a concerted and decentralized effort to flood iFilm with various infringing videos and see how Viacom reacts. Even better, if only YouTube or Google had material they owned the rights to that could be uploaded to iFilm. That would give GooTube a chance to countersue, making things really interesting. But to be sure, in no way do I encourage others to break the law, nor am I inducing others to do so, even if such would be a political statement.
Only days after Viacom sued YouTube, many people have said "Hey, wait a minute. What about iFilm?" iFilm after all is a video hosting site much like YouTube and one of the destinations to which Viacom is trying to funnel people so they can watch the $1 billion worth of Daily Show and Colbert Report clips they were previously watching on YouTube. The funny thing is that for all of Viacom's bemoaning that YouTube is not following the law, the fact is that Viacom would be equally culpable for infringing videos on its site.
Ars reports today that there are infringing videos on iFilm, specifically video from the Knicks-Nuggets brawl earlier this season. If these videos are up without the permission of the rights holder, than it certainly appears the Viacom is asking a court to hold YouTube to a standard that it doesn't adhere to even on its own site. Quite damning indeed.
However, some red flags arise with the Ars story. I spent much of yesterday searching through iFilm for infringing videos and came across a few curious observations. First, videos on the site indicate the user that submitted the video, but the videos that Ars points to don't have a user name attached. This leads me to believe that a clip uploaded by iFilm itself doesn't include the user identification, as can be seen by this clip from the Office (which I presume Viacom has the right to put up). If that's not the case, then I wonder why the NBA clips don't have a user id. The DMCA requires a site to bar users deemed to be repeat infringers, a duty that gets complicated if you can't track down what your users upload.
In some of the clips I can across that I found suspect (and also some of the more interesting clips), they seemed to be uploaded by iFilm insiders. This montage of 80's cartoons is a classic example of benign infringement, technically copyright infringement without any real harm because it doesn't really hurt the copyright owner, was uploaded by the user dhammond. After some snooping, I'm confident that this dhammond is this Doug Hammond, who appears to work for iFilm and has appeared on TV promoting iFilm and its zany video clips. What about all his videos? Did he get permission from Maury Povich before putting clips of his appearance on iFilm? What about the cartoon montage and his other clips? Plus, what does it say about a video sharing site (one that is supposed to "compete" with YouTube) when employees masquerade on the site as regular users?
If it turns out that iFilm employees are posting infringing material, iFilm would certainly be liable for the infringement and would be a bad act, possibly even opening iFilm up to liability for inducing others to infringe copyright.
I don't work at iFilm nor do I work at any video sharing site, but as a law student devoted to IP and the Internet, I have difficulty in assessing what videos are allowed to be on iFilm and what are not. Viacom is a huge company with lots of properties so it's difficult to say what they own the rights to. It's also difficult to know with whom they have deals with. There are lots of Law and Order clips on iFilm, but what's the status on those? This should only highlight the difficulty that a site has in identifying infringing material and is why the DMCA is right when it says that a website should not be held liable if it's not 100% effective in blocking these clips and puts the onus on reporting infringement on the rights holders themselves. Who is in a better position to judge whether a video on iFilm infringes, me or Viacom?
This is not to say that infringing videos do not exist on YouTube. In a display of civil disobedience, Gawker media uploaded clips from Oprah to iFilm. Now, Oprah is made by CBS so whether or not CBS clips are allowed to be on iFilm is probably a non-issue given that it used to be owned run by Viacom. But the point is that a random user recorded live TV and uploaded the clip. That's the rub and what Viacom criticizes YouTube for not policing better. Clearly, Viacom has not structured iFilm in such a way that is "better" than YouTube: both sites allow users to post whatever they want. Or so it appears.
In the Ars article that is mentioned above, it said that Viacom had responded to the hypocrisy charge and comparisons between iFilm and YouTube:
Contributions to iFilm are all screened by iFilm employees prior to posting, to ensure that copyrighted, pornographic or other restricted content is not posted to the site.Really? That is bad news for Viacom for a couple of reasons.
First, if it's true, then any infringing material that does make it through the human filters has the potential to void iFilm's safeharbor status under DMCA 512(c). A site can only invoke the 512(c) safeharbor if it doesn't know that infringing material has been uploaded by a user. The relevant provisions here are 512(c)(1)(A)(i) and 512(c)(1)(A)(ii), which say that the safeharbor only applies when the defendant:
(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
Because of this knowledge problem, it can rightly be said that the DMCA doesn't require, and even encourages sites not to police what their users upload since if they do, once they find something that looks like it may infringe copyright they must remove it to maintain their safeharbor. No where in the DMCA is there an affirmative duty to police against infringement. Viacom is annoyed by this alleged failure in the DMCA and would prefer that YouTube follow the same kind of screening measures as iFilm does, which would be one way to resolve their lawsuit. That's nice, but that's not what the law says, and even worse it's amazing to think that in making its point about how a respectable video sharing site should operate, Viacom would actually jeopardize its safeharbor standing by having a human filter. So much for taking the moral high road.
Second, if iFilm does use a human filter and copyrighted videos make it through, the further implications of that could be a big problem. In its complaint, Viacom alleges that YouTube induces users to infringe copyright. I have discussed the inducement claim to some extent already, and how inducement is really a bad intent test, but here we can see how a court could find that iFilm "induces" infringement. If iFilm is letting copyrighted material through its human filter, it could be argued that any errors are not really errors at all and that iFilm has allowed certain clips to evade its filters in order to draw more users. This may be a stretch, but really no more of a stretch than the inducement claim against YouTube.
As has been said, the DMCA protects all sites equally so long as they behave according to the statute and protects YouTube as much as it protects iFilm and Viacom. What Viacom does with iFilm should be relevant to a court because it goes to show the larger picture of how difficult it can be to identify infringing videos, the extent that an independent website is equipped to make such copyright determinations, and the also the intellectual honesty that Viacom is bringing in its complaint against YouTube. Viacom may well think that this hypocrisy is required given the current state of the law, how its unfair to rights holders and that iFilm's policy should be what the law condones (and not YouTube's), but that's for Congress to decide. It's not the court's job to overrule Congress because Viacom is no longer satisfied with following the law because it's too much work.
As an aside, and not that I want to induce others to infringe copyright, it would really be something if there was a concerted and decentralized effort to flood iFilm with various infringing videos and see how Viacom reacts. Even better, if only YouTube or Google had material they owned the rights to that could be uploaded to iFilm. That would give GooTube a chance to countersue, making things really interesting. But to be sure, in no way do I encourage others to break the law, nor am I inducing others to do so, even if such would be a political statement.
posted by Nick at 12:20 PM
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