Debate on YouTube Copyright Vulnerability

The Wall Street Journal is hosting a debate between Berkman Center director John Palfrey and University of Texas economics professor Stan Liebowitz on the issue of whether Google is assuming significant copyright liability with its proposed acquisition of YouTube.

At one point, Professor Liebowitz asserts that there is greater efficiency and social utility in requiring Google to police infringements on YouTube rather than placing that burden on individual copyright holders:

I don’t see how it can be advantageous to society to have multiple copyright owners all searching over thousands of files to find those which are violating their particular copyrights when Google can do it with but a single search. The pure duplication of effort would seem to put the efficiency ledger firmly on the side of having Google do the search. The fact that only Google knows which files are most downloaded, and which, therefore, are most valuable, also points to why Google should be doing the search. … [It] certainly seems socially wasteful to force the copyright owners to do the searching, and if Google want to be held to a higher standard (“do no harm”) it should undertake this task on its own. Even law is supposed to take the public welfare into account, from time to time.

Putting aside the snarky closing jab at the law, this analysis seems off-base in two other important respects.

First, Google/YouTube has more information about what videos are being posted and downloaded, it is true. But the rightsholders are the ones who have information about the copyrights in question. Google can tell that a video is popular, but there is no central registry for Google to consult to determine (1) whether elements in a video in fact are under copyright (as Palfrey notes, much of YouTube content is original creative work originated by the people who post the videos); (2) whether the video maker might have a legal right to use the content (including but not limited to Creative Commons licenses or fair use); or (3) whether a rightsholder might choose, for its own purposes, not to enforce the copyright — maybe two million downloads of a cult-classic video using a cheezy song is a viral marketing bonanza that the rightsholder believes will yield more revenue in the long-run.

Second, copyright holders already have the burden to police infringements in low-tech situations. Provisions of the law such as special statutory damages are justified precisely because there is an expense to enforcing the rights that rightsholders must bear and that we wish to help offset. More broadly still, rights don’t just enforce themselves — property rights, constitutional rights, contract rights, you name it. Aggrieved parties enforce their rights. They sue (or they threaten to sue), and if they prove that their rights have been compromised they win relief. Why should this be any different?

It’s definitely worth reading the whole debate…

4 Responses to “Debate on YouTube Copyright Vulnerability”

  1. [...] The digital copyright issue is one of the sidebars related to the Google/YouTube transaction that has merited a fair amount of digital ink. [...]

  2. [...] In addition to the copyright issue, there was an internet issue too. Panicked by the apparent copyright infraction, our heroes altered the tape-delayed rebroadcast of the show on the West Coast in order to replace the apparently infringing material with an apology. Ah, but they are rushing. This is the dark side of the sped-up world of the internet and the way it makes us all so hasty. (More Info/Law!) Just after the apology airs, one of the characters discovers that the stand-up comedian who was captured on the video had himself swiped the jokes — from a former staff writer for Studio 60 in the early 1990s. Therefore, Studio 60 owns the copyright after all! Hooray! Here, again, no one paused to mention the work for hire doctrine, but they probably got the substance right on that too. (BTW, the characters’ lack of information aboout copyright ownership here is a nice illustration of my point yesterday about YouTube/Google.) [...]

  3. Your first comment here is on point. This is ridiculous. That’s what happens to all of these money makers. Even websites are popping up claiming to make money off of you tube, such as Tube Traffic.

  4. I first went on YouTube and found a ton of videos with famous music. I naively thought I’ll make one too with my favorite song only to find out afterward about the strict copyright rules. I say, that musicians should be honored that people want to use their music in their videos. A solution would be to have YouTube require a special fee for those who want to post a homemade video with copyrighted music. The creator of the homemade video would not receive any money or profit whatsover but would pay to post their creative video on YouTube only if it includes a copyrighted music. The musicians would profit enourmously.