It's the headline that many saw coming before the dust even settled on Google's $1.65 billion acquisition of YouTube last year. Legal experts might not have predicted the name of the behemoth that would file a formal complaint against the viral-video site, but a massive copyright infringement suit seemed inevitable to many.
That behemoth, of course, is Viacom. Viacom took its gloves off in a digital-age boxing match that could go many more than 12 rounds as two technology champions duke it out on principle. In a statement it released in conjunction with filing its $1 billion federal copyright lawsuit in the U.S. District Court for the Southern District of New York, Viacom called YouTube a "significant, for-profit organization that has built a lucrative business out of exploiting the devotion of fans to others' creative works in order to enrich itself and its corporate parent Google."
Whether those "fans" to which Viacom referred mind Google making money from the traffic they drive to the video-sharing site is not the issue. Whether the fans are liable in future copyright suits is. According to some legal experts, YouTube's uploading community could find itself in the line of fire.
Remember the RIAA?
Just last year, the Recording Industry Association of America (RIAA) targeted YouTube -- and its users. Many YouTube users received cease-and-desist orders from the RIAA. At issue, once again, was the alleged illegal posting of copyrighted material.
At that time, some legal experts discussed the possibility of an RIAA v. YouTube battle. Instead, the world is watching a Viacom v. YouTube battle unfold, but many industry watchers believe it could mark the beginning of a copyright-owner onslaught from all sides. The RIAA could decide to strike while the iron is hot and rekindle the coals of the fire it started last year. The RIAA could not immediately be reached for comment for this report.
What is certain is that the cease-and-desist letters were a demonstration of how emerging and increasingly popular digital technologies are putting a strain on copyright holders' ability to control the use of their works in a digital age, according to Eric W. Bass, intellectual property litigator with Farella Braun & Martel in San Francisco.
However, he added, "Unlike the RIAA's pursuit of peer-to-peer, fire-sharing services, in which the uploading of musical content is sometimes centralized enough that pursuit of the high-traffic offenders is a plausible enforcement strategy, there may be no centralized source of these videos for the RIAA to pursue."
Centralized source or no, Christopher Norgaard, intellectual property attorney and partner in the Los Angeles office of Ropers Majeski Kohn & Bentley, said he believes YouTube and its users face a significant risk of exposure to secondary liability for copyright infringement. Secondary liability can be either contributory, meaning inducement of infringement, or vicarious, meaning profiting from infringement while failing to exercise a right to stop it.
Under the Supreme Court's "Grokster" decision in the Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd. case, it was determined that secondary liability can arise from statements or actions directed to promoting infringement, or even from uncommunicated intent to promote infringement. That puts YouTube in the line of legal fire. And its users aren't off the hook, either.
"YouTube users likewise face exposure to liability for copyright infringement, to the extent that they distribute copyrighted works to YouTube or other users by 'digital phonorecord delivery,' which the Copyright Act defines as an individual delivery which results in a reproduction of a phonorecord by or for any transmission recipient," Norgaard concluded.
Whether YouTube users will curtail their use of copyrighted materials in the mashups they distribute on the site for fear of legal repercussions remains to be seen. But legal experts agree that the lawsuits are a sign of the digital times and the Viacom v. YouTube case could open up the legal floodgates against viral-video sites.