Can YouTube’s Copyright School Save it from New Copyright Laws?

We have all been there, heard our friends talk about the latest YouTube hit, found the nearest computer only to find that video had been removed.  The accessibility of YouTube has made it an internet phenomenon.  Users can upload content with anything from videos of cats to television clips or anything in the middle.  However, this accessibility has also caused YouTube a great deal of trouble.  With over 20 hours of video uploaded to the site each minute, it is nearly impossible for YouTube to ensure that all of the material uploaded complies with U.S. copyright laws.  In the past, YouTube would simply ban a user after three copyright protected uploads, but that has since changed.  YouTube users are now required to attend YouTube Copyright School.  Copyright school was not instituted by YouTube simply because Google (who owns YouTube) executives were taking a proactive approach, not just to protect those who may suffer in lost royalties from illegal uploads, but to protect themselves.

In 2008, Viacom filed a lawsuit against Google for one billion dollars alleging a violation of the Digital Millennium Copyright Act (DMCA) for YouTube user submitted clips of the popular children’s television show SpongeBob SquarePants.  The DMCA was passed in 1998 in order to ensure United States compliance with worldwide intellectual property treaties designed to protect intellectual property in the growing digital landscape.  The DMCA does provide a safe harbor (a statutory limitation of liability for defendants) for internet services providers, in this case, YouTube.  The safe harbor (see section 512d) does NOT apply if the provider fails to quickly remove infringing content when it: 1) knows of infringement; OR 2) is aware of facts or circumstances from which infringing activity is apparent; OR 3) has received DMCA compliant notice OR the provider receives direct financial benefit from infringement and has the ability to control the infringement.  The court in Viacom v. YouTube held that the DMCA protected YouTube from copyright infringement liability.  The decision has been appealed and may be decided soon.  This decision has shocked commentators and scholars alike.  It also seems to have garnered the attention of lawmakers in Washington.

This June, the Senate Judiciary Committee approved a bill that would punish website owners for streaming copyrighted material such as movies and television shows.  The Commercial Felony Streaming Act would make it illegal to stream copyrighted material from a host website, whereas previous legislation made it illegal to download or distribute copyrighted material via what are known as “peer to peer” networks.  The Act is not meant to punish the casual individual but rather the host websites as streaming ten videos over a six month period would carry the potential for a five year prison sentence.  Since these peer to peer network sites are often hosted in foreign countries, it may prove to be difficult for prosecutors in the United States to enforce the law effectively.

The proposed law does not seem to be targeted specifically at YouTube.  YouTube may be protected for now because of the Viacom ruling because the bill is focused on those profiting from streaming copyrighted material.  The court in Viacom has already ruled that YouTube was protected from liability under the DMCA in that it did not receive direct financial benefit from the copyrighted materials on its site.  The pending appeal of the Viacom case as well as the passage of the Commercial Felony Streaming Act may have lasting consequences on YouTube.  Will Copyright School be enough to save it?

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* Jon Gasior is a rising third-year law student at Wake Forest University School of Law.  He holds a Bachelor of Arts in American History and a minor in Legal Studies from the University of Rochester.  Mr. Gasior has worked for the United States Department of Interior and has an interest in real property, business law, and sports and entertainment law.