Large corporations can now show blatant disrespect for copyright and get away with it. That seems to be the message coming from the Southern District Court of New York, which this week delivered a defeat to Viacom in its long-running litigation with Google/YouTube. Viacom had alleged that YouTube built the value and user base of its business based on copyrighted works used without permission, and that YouTube consistently and deliberately dragged its heels when it came to removing infringing material. Google claimed that it acted absolutely within the conditions of the US Digital Millennium Copyright Act (DMCA), following all guidelines for dealing with piracy on its service.
Like any court judgement, this one is based on certain specific questions. The court’s key finding was that Google had acted within the rules of the DCMA and as such, could not be found liable for copyright claims on its service. The ruling accepted of Google’s claim that it always complied with specific and correctly-delivered takedown notices but could not be held generally responsible for identifying and removing pirated material from its site. The court also – rather surprisingly to our mind - accepted Google’s claim that it did not receive a financial benefit from the use of pirated material.
This ruling seems to fly in the sense of common sense. Does the court really believe that YouTube gained the $1.65bn value which Google paid for it based solely on user-uploaded videos of dogs chasing their tales? And that the company has never derived financial benefit from illicit clips of music, TV, sport? The main problem here is that the DMCA seems to be open to some interpretation and has provided protection to a business that in our view profited from the misuse of others’ copyrights, whilst providing no protection to the wronged copyright holders.
This week we learnt that the BPI has submitted new copyright infringement claims to Google, where it identified not just specific URLs for infringing material, but also entire website URLs such as http://megaupload.com/ and http://mediafire.com/. Interestingly this story broke before news of the ruling in the Viacom case. But clearly the BPI had an inkling that the DCMA was going to be found lacking in terms of providing enough protection. These new infringement claims open two new possible avenues: one being that Google might in future be found liable for piracy for linking to entire infringing sites, not just specific links. Indeed the IFPI has now also written to Google with similar claims, asking it to remove links to The Pirate Bay.
What these claims also prepare the way for is a possible action fought not under the US law, but the new, untested UK Digital Economy Act.
We’re nervous of any anti-piracy moves which seek to criminalise or punish individuals whose piracy is insignificant on an economic scale. But we don’t feel the same way about companies which at the very least display a corporate ambivalence to piracy on a massive scale, but might even be accused of being engaged in a strategy to profit from piracy. We absolutely agree that the BPI and IFPI should make unerring and determined efforts to ensure that Google treats copyright with more respect, and that specifically it must stop providing easy linking access to infringing material.
What’s really bizarre about all this is that Google is apparently planning to launch its own legal music services. A company which appears to show blatant disregard for music copyright also wants to become a legitimate player. Isn’t it time that Google decides where it stands on online copyright infringement? The legislation may allow room for manoeuvre, but the general issue is actually quite simple. Either Google is committed to fighting piracy, or it turns a blind eye. So which is it?
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