Saturday, March 24, 2007

Viacom's counsel Fricklas writes about the YouTube case

The March 24, 2007 The Washington Post contains an op-ed by Michael Fricklas, general counsel for Viacom-Paramount. The piece is called “Our Case Against YouTube.” It is at this link. The earlier story was by Frank Ahrens in the Post, March 14, 2007, “Viacom Sues YouTube over Copyright: Infringement “Cornerstone’ of Site’s Business, Media Firm Says”, at this link. .

Fricklas points out that the Digital Millennium Copyright Act (DMCA) is structured so that ISP’s and communications providers have no obligation to monitor their subscribers’ content. There is a safe-harbor and provisional take-down process that ISPs follow when a copyright owner files or “serves” a complaint following an accepted administrative legal procedure as outlined in the statute.

Fricklas believes that YouTube is essentially different in nature from an ISP. It is more like an entertainment or media company. That is, it is more like Warner Brothers (or New Line or PictureHouse) than it is like AOL; it is more like LionsGate than it is Earthlink. Or, in fact, in a sense it is a trade competitor to Viacom and Paramount itself, by offering film and video content, however amateur some it is or “self-published” or “cooperatively published.”

I can even imagine trademark law questions here, because Fricklas is posing a question as to exactly what kind of business YouTube is. Similar questions have been raised about search engines companies and Amazon. The suit suggests that YouTube’s business model may be predicated upon infringement, and we know that this would not bode well given the MGM v. Grokster case from 2005. Down the road, an ultimate question is how this kind of litigation may affect “newbies” in the media business (partly because newbies often have very low costs under free entry and “instant fame” through search engines), and those can lead to trademark as well as copyright questions.

Earlier paper (by Tim Lee) discussing the DMCA linked here.

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