No infringement here

Michael Hedges September 1, 2008

As copyright holders scramble to assert claims over everybody and everything that sends or receives anything through the Web legal arguments, for and against, are becoming more sophisticated. Across the globe there’s little consistency and less on the horizon. The good news is that innovation leaps forward as the lawyers squabble.

Take the case the civil lawsuit filed in the US State of California against Veoh Networks, owner of a user-generated content website. It streams video content that anybody uploads. Presumably they make a little money from an automated ad server.

Porn producer Io Group sued Veoh for copyright infringement because a few of those anybodies uploaded their, er, content. They said Veoh should have ‘seen’ that the, er, content was copyright protected and kept it, er, private. Veoh said they complied with the law. The judge agreed. 

US Magistrate for Northern California Howard Lloyd ruled (August 27) that Veoh complied with US Federal law when it promptly removed videos uploaded to its site after Io Group invoked its copyright. It has subsequently employed a video fingerprinting system that prevents copyrighted material, once identified, from ever being uploaded. The Digital Millennium Copyright Act (DMCA), which does not require user-generated web sites from pre-screening content, protects Veoh, said Judge Lloyd.

Some observers believe the Veoh decision will negatively affect media giant Viacom’s massive lawsuit (€640 million, US$1 billion) filed 18 months ago by against media giant Google, owner of YouTube. Viacom wants damages from Google for insufficiently protecting Viacom’s copyrights when YouTube users uploaded content. British and Scottish football leagues joined Viacom in the class action lawsuit.

“YouTube is a business built on infringement,” said Viacom spokesperson Jeremy Zweig. “Google and YouTube have engaged in massive copyright infringement; conduct that is not protected by any law, including the DMCA.”

This case may make it to a courtroom – both parties have asked for a jury trial – next year, or the next. Meanwhile, YouTube is offering royalty payments to copyright owners in lieu of removing material. Courts, like judge Lloyd, are starting to toss a question back at plaintiffs: where’s the damage?

The Belgian newspaper association Copiepress lost its complaint against the European Commission (EC), claiming its copyrights were infringed by headlines appearing on a web-based press review. A Belgian court, aptly named the Brussels Court of Seizures, dismissed the case on jurisdictional grounds but it was persuaded by the EU’s vast legal array that a news aggregator has standing against copyright infringement claims. After all, it’s just machine code.

Copiepress did win a ‘shoot yourself in the foot’ claim against Google’s news aggregator Google News in 2007. News aggregators are the 21st century newsstand – kiosk. Copiepress won the decision but its members were tossed off the newsstand. Brilliant!

Rights holders and their representatives have sought a variety of legal remedies as the Web has become the content distribution choice for millions. Peer-to-peer file sharing is one target, user-generated websites another, content aggregators yet another. US courts have allowed the Recording Industry Association of America (RIAA) to file lawsuits against individuals based on information from internet service providers (ISP) without naming the individuals or warning them of court action.

This legal strategy falls foul of European law. The European Court of Justice ruled in a case involving Spanish music rights collector Promusicae and ISP Telefonica that ISPs are not required to reveal subscriber information in civil actions. A German court recently (August 2) ordered prosecutors not to turn over subscriber information when sought by the International Federation of the Phonographic Industry (IFPI) for civil damages lawsuits. In other words: ISPs cannot be forced to take on the role of policing and prosecuting offending downloaders.

And, too, privacy issues resonate far differently in Europe than in the United States. American ISPs regularly cooperate with prosecutors, police and Federal agents. Google was ordered to turn over user data – log-in IDs, IP addresses and file identification – to Viacom in a July court ruling. Shortly thereafter, Viacom, sensing an impending public relations nightmare, agreed to Google’s offer to turn over the data with any personal information about users removed. Spokesperson Zweig consistently denied that Viacom wanted to chase after every teenage downloader on the planet like the RIAA.

Not wanting to be left out of the lawsuit fun, Mediaset - owned by Italian Prime Minister Silvio Berlusconi - filed a €500 million civil suit against YouTube for copyright infringement at the end of July. Google’s legal team responded: been there, done that. Google’s argument – if the Viacom case ever sees a courtroom – may be the most compelling and may affect the internet’s ever evolving legal standing:

"By seeking to make carriers and hosting providers liable for internet communications, Viacom's complaint threatens the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression."

And, there you have it.