In the battle between the “tubes” and copyright owners, YouTube has scored a huge victory against Viacom, perhaps marking the death knell of adult video, notwithstanding the fact that no adult companies are involved in the case. The prestigious federal district court for the Southern District of New York in Manhattan has held that YouTube is entirely protected by the “safe harbor” provision of the Digital Millennium Copyright Act (“DMCA”).
Because YouTube religiously follows the DMCA’s notice-and-takedown procedure and other DMCA requirements, it is protected, the court found, by DMCA’s safe harbor. That was enough, notwithstanding the apparently valid claim that there was evidence that not only was YouTube “not only generally aware of but welcomed copyright-infringing material being placed” on the site, but that YouTube had “‘actual knowledge’ and were ‘aware of facts or circumstances from which infringing activity [was] apparent’,” and that YouTube was making massive profits from advertising as a product of the infringing activities.
Sound familiar? The significance of this case cannot be understated.
First a little background is in order.
This is the Mother of All Tube Cases and, to be sure, no small endeavor. The docket report listed a total of 35 attorneys (14 plaintiff; 21 defense), representing huge, multi-city law factories from New York City, Chicago, the San Francisco Bay Area, Denver and Minneapolis. And behind these nominal attorneys are armies of lower-level attorneys, paralegals, stenographers, investigators and experts—the total number of people working on this case likely runs into the hundreds. To date, almost 400 documents have been filed in this case; certainly many more will find their way to the docket sheet before this case is over.
The opinion roundly embraces the DMCA “safe harbor” provision. It thoroughly analyzes its extensive legislative history from its 1998 enactment. Back in those days, it is improbable that Congress had any idea of the potential for the massive copyright infringement machines that are the “tubes.” Congress unwittingly left a hole in the DMCA that technology a decade later would drive a truck through.
There remain a few activities to take place in the Viacom v. Youtube case before it becomes subject to appeal. That inevitable appeal will necessarily consume several years—and likely another round to follow in the United States Supreme Court.
The bottom line is that, whatever anyone in this industry tries to do in court about the “tubes,” ultimately this behemoth case will decide the issue under the current statutory scheme. It even speaks with approval of the Titan Media adult video’s case against an adult “tube.” Io Group Inc .v. Veoh Networks, Inc., 586 F.Supp.2d 1132 (N.D. Cal. 2008).
To be sure, this decision will ramp up the ambush on Congress that certainly is being orchestrated by Hollywood—a voice to which Congress has no political choice but to listen. The DMCA is 12 years old; and, as always, technology has outpaced the glacier that is Congress.
Can a congressional fix solve the problem for adult video? Probably not. For Hollywood? Likewise, probably not. No proposal has been seen that would work.
Under the current statutory scheme, as interpreted in the Viacom v. Youtube case, even perfect implementation of the notice-and-takedown provision would leave plenty of millions of copyrighted images available at any given time so as to supply so much free content that for-pay adult video would have no market; and perfect or even good implementation is unrealistic (as calculated in an earlier column, AVN Online, September 2008).
Creating a new statutory scheme that would more efficiently take down infringing materials is constrained significantly by, of all things, the same First Amendment that enabled the industry in the first place. Stopping speech—a so-called “prior restraint of speech”—requires elaborate procedural safeguards. To be sure, copyright infringement is not protected by the First Amendment; but neither is obscenity, libel or slander. However, in any of those cases, before being muted by an allegation of being unprotected speech, the speaker is entitled to proper—i.e., invariably time-consuming—procedural safeguards. The technological ability to flood the internet with infringing materials over an effectively infinite number of tube sites will overcome any fix that is consistent with the First Amendment.
Moreover, what can be done about overseas tubes? Under any circumstances, it is difficult enough to shut down sites in the United States, but what about the onslaught of sites in impenetrable countries, such as some of those in some parts of the former Soviet Union? International treaties make it difficult enough to enforce copyrights in those foreign countries that are cooperative. Ask Microsoft how difficult it is to stop knock-off computer programs in China (where adult is no problem because that is as illegal there as child pornography is here).
This author had a conversation at his Memorial Day barbecue/beer celebration with a neighbor and close friend who is general counsel for a major record label. That industry—which has been besieged by piracy for well over a decade—continues to be beside itself. He agrees with the above gloomy outlook.
Viacom International, Inc. v. Youtube, Inc., ___ F.Supp.2d ___, 2010 WL 253204 (S.D.N.Y., June 23, 2010).
Clyde DeWitt is a Las Vegas and Los Angeles attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at [email protected]. More information can be found at ClydeDeWitt.com. This column is not a substitute for personal legal advice. Rather, it is to alert readers to legal issues warranting advice from your personal attorney.
This article originally ran in the August 2010 issue of AVN.
