Over-enforcement could stifle growth

A US$1-billion lawsuit over copyright of video clips streamed over the internet may serve as a reminder to would-be copyright reformers in Canada that sometimes less is more.

Over-enforcing our existing notions of copyright may stifle the tremendous potential benefits from blossoming new media.

In March, Viacom International Inc. sued YouTube Inc. and Google Inc. in U.S. District Court for intentional copyright infringement of several of its entertainment properties, including The Colbert Report, South Park, and MTV, alleging that more than 160,000 unauthorized clips, viewed more than 1.5 billion times, of its programming were available on YouTube.

Viacom is seeking an injunction prohibiting further infringement in addition to $1 billion in damages, claiming in its simultaneous press release that YouTube’s business model, “which is based on building traffic and selling advertising off unlicensed content, is clearly illegal and is in obvious conflict with copyright laws.”

Interested observers in Canada suggest that copyright law is not the best tool for resolving these kinds of disputes, as a lot of non-infringing content is caught in the crossfire, and that such litigation is contrary to Canadian societal interests - not just the interests of YouTube users, but to everyone - including the content-providers, when viewed over the long-term.

“I think YouTube represents a new, very different way of distributing content, which is breaking down the old dichotomy between consumer and producer,” says Samuel Trosow, associate law professor at the University of Western Ontario. “We have to be careful not to set the bar so low for copyright infringement that we discourage people from making use of these types of new technologies, which can be very transformative.”

“What this may mean for Canadians - Canadian policy-makers, entrepreneurs, and those in the community - is it’s a sign we need to be careful about how we want to address these issues in our next round of legislative reforms, which should be coming soon,” says Jeremy deBeer, a law professor at the University of Ottawa specializing in law and litigation related to technology and intellectual property.

Although the Canadian copyright system is different than that of the U.S., the rights in question are similar. YouTube is being sued for direct and indirect copyright infringement, with Viacom alleging that it had directly reproduced, performed, and distributed Viacom’s content, and that it was secondarily liable on contributory and vicarious grounds and for inducing infringement.

“Expert opinion is divided about the outcome [of the litigation],” says deBeer, who noted that as YouTube does not post the allegedly infringing material itself, but merely hosts the user-posted material, the litigation will likely centre on the “safe harbour” provisions of s. 512 of the U.S. Code, Title 17, Chapter 5. Under that section, the host can escape liability with respect to hosting infringing material if it acted expeditiously to take the content down in response to a notice - assuming the host was unaware of the infringement and there were no circumstances from which the infringement might be inferred.

“It’s sort of a red-flag idea,” says deBeer, “and Viacom has alleged that there are all sorts of the red-flags from which infringement could be inferred.”
For example, he mentions that Viacom will likely argue that when YouTube saw tag-lines referring to the The Colbert Report on the posted content, they ought to have inferred infringement.

As for YouTube, “They’re going to make the argument that when they get a notice that there’s infringing material, they try to take it down. But they can’t try to check it before it goes up because that would destroy the viability of the whole system,” says Trosow. “The studios will argue that they’ve been very lax in responding to take-down notices, and they need to do a better job in removing the infringing materials.

“One of the interesting things that is going to come out of this case is to what extent the American courts are going to continue to find inducement or secondary infringement liability,” he says.
Were such a case to take place in Canada, Trosow says the issue of “secondary infringement” would be dealt with as an authorization right.

“I don’t think YouTube would be liable for authorization infringement, as they’re doing nothing more than allowing people to post things,” he says. “In order to show that they were liable you would actually have to show that they were given notice about infringing material and didn’t make a reasonable effort to try and take it down - or they were uploading the infringing materials themselves.”

He added that in CCH Canadian Ltd. v. Law Society of Upper Canada, the Supreme Court of Canada in 2004 rejected the authorization theory, saying you have to do more than just provide the means of copyright infringement. In that case, the law society was found to not be infringing by providing photocopy machines.
“I think the courts in Canada have been a little more careful to find a reasonable balance between the rights of owners and the rights of users,” he says.

So should legislators hold a host such as YouTube liable under Canadian copyright law?
“It’s difficult,” says deBeer. “And the reason it’s difficult is there’s a wide spectrum of content available on a service like YouTube.”

It ranges from blatantly infringing content such as TV programs, the use of characters in parodies, or music as soundtracks to home videos, to truly creative independent content where copyright is held entirely by the creator.

“You want to find a way to preserve the transformative potential without completely eroding the existing system of copyright,” says deBeer. “And if I had to err, I think I would err on the side of facilitating innovation.
“We’re getting into this model where we’re using litigation as a big stick to light a fire under the negotiation process, the end result of which would be filtering technology, then we’re only dealing with the services that are already established, and it doesn’t allow the new services to grow, for new innovation to spring up within the safe harbours.

DeBeer says he would advocate a streamlined rights-clearing process where it’s easier for new, innovative companies to clear the rights they need through a collective copyright administration, tariff regime, or more streamlined independent licensing agreements.

In the long run, Trosow says, national copyright laws are not going to be able to keep up with the technological changes.

“Whatever you try to do to shut down these distribution services, they will reappear in other guises - and when they start to appear in a sort of distributed way, where there’s no deep pocket, it becomes less and less a copyright infringement issue.”

“I think the important thing is that we recognize that the technology is such that we’re not going to be able in certain circumstances to return to the ‘old days,’ where you had this sort of strong dichotomy between producer and consumer.”

As for the Viacom litigation, both Trosow and deBeer expect a settlement.

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