Copyright Challenges for User Generated Intermediaries: Viacom v YouTube and Google.

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YouTube, the video sharing website has risen to be one of the most popular and profitable websites on the Internet. What was first created in February 2005 as a platform for people all over the world to share videos, has now developed into a billion dollar business, that is an integral part of the Google empire. However, while the success and popularity of YouTube is clear, the associated copyright issues which lie at the very core of the YouTube platform are far from settled. Evidencing the legal uncertainty surrounding the operation of YouTube, is the current high profile litigation which has been brought by entertainment company, Viacom International. The case filed in the United States District Court for the Southern District of New York and any subsequent appeals, have the potential to be one of the most influential copyright decisions in the digital era. YouTube is not the only user generated intermediary to have encountered legal difficulties, rather it exemplifies the copyright challenges facing user generated intermediaries. Indeed, the evolution of Web 2.0 and other new digital technologies have enabled digital content to be easily reproduced and communicated online, without the permission of the copyright owner. The following paper will provide an analysis of the recent Viacom v YouTube case, including the claims brought by Viacom, both party’s arguments and an examination of the key issues, which are likely to decide the case. The paper will also consider copyright challenges for other user generated intermediaries, such as blogs and wikis. Finally, the paper will provide an analysis from an Australian perspective of some of the copyright challenges which user generated intermediaries are likely to encounter under Australian copyright law.

Conclusion

Copyright law by its very nature fundamentally challenges the operation of user generated intermediaries, such as YouTube. The rapid development of Web 2.0 and other new digital technologies have enabled consumers to easily reproduce and communicate digital content online, without the permission of the copyright owner. These challenges are highlighted in the recent Viacom v YouTube and Google litigation, which has the potential to redefine copyright law in the digital era. This litigation will also be a vital test case for other user generated intermediaries, such as blogs and wikis which face similar copyright challenges. While, it is impossible to predict how the court will decide in the Viacom v YouTube and Google case, assuming it does not settle, there are certainly strong arguments in favour of Viacom.

In this regard, the safe harbor provisions in the United States and similar jurisdictions, were designed to strike a balance between competing interests. Service providers are given a degree of certainty, in that they need not actively monitor their services for copyrighted material, whilst copyright owners receive the benefit of expedited procedures to remove infringing content. The safe harbors were not designed to protect service providers who fail to satisfy the necessary preconditions. Indeed, any service provider’s business model, which places such a high degree of reliance upon the judicial interpretation of a legislative provision, is fraught with legal danger. Other intermediaries have developed successful business models which minimise the risk of copyright infringement and fall safely within the safe harbors. There is no reason why YouTube should not do the same.

O’Brien, Damien.
Copyright Challenges for User Generated Intermediaries: Viacom v YouTube and Google.
In Brian Fitzgerald, Fuping Gao, Damien O’Brien and Sampsung Xiaoxiang Shi, eds., Copyright Law, Digital Content and the Internet in the Asia-Pacific, 219–33. Sydney: Sydney University Press, 2008.

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