In reference to Ottaviani and Pudelka (2007), YouTube is one of the most famous sites that enable users to share music and films. It was founded in 2005 and reported to be one of the fastest-growing public sites after one year. According to YouTube (2015), the company was purchased by Google in 2006. The website has been subjected to many lawsuits relating to copyright infringement. The research utilizes a case study design to analyze various cases relating to copyright infringement. It reveals that the most common penalty is the removal of the materials uploaded. The research concludes that copyright infringement limits the promotion of communication and culture.
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Music and films are important in the promotion of culture (Ottaviani & Pudelka, 2007). Additionally, a copyright ensures that the owners of the music get credit and benefit from their efforts. In the presence of copyright laws, the owners are able to get creative and obtain economic benefits. Copyright infringement limits the role of music and films in culture. This research focuses on YouTube’s copyright infringement of music and films as it hinders the promotion of culture and communication. The company was purchased for 1.65 billion dollars, and Google had to cover more than 150 million dollars that were related to copyright infringement cases.
Viacom accused YouTube of copyright infringement and demanded the removal of unauthorized contents from the site. According to Ottaviani and Pudelka (2007), the case ended after both companies agreed to share revenues from advertising. Other cases presented in the research include Rand’s presidential campaign video, Pharrell Garcia’s lawsuit, and Lenz and Jonathan on fair use. YouTube (2015) indicates that most of the copyright infringement issues are brought about by its users.
Ottaviani and Pudelka (2007) note that the penalties for copyright infringement vary from cases to cases. In regard to the cases represented in this research, the penalties included the removal of the videos from the site. The aim of the current research is to assess YouTube’s copyright infringement of music and films. Additionally, the research utilizes a case study methodology to explore some of the copyright infringement cases that have faced YouTube in the past. Therefore, it connects to the research question, which is how is that case study contributes to the production and distribution of culture.
Law of YouTube on copyright, actions, and penalties
Mashable (2015) indicates that YouTube has faced a lot of lawsuits in the past that relate to copyright infringement. As a result, the company has various laws that try to limit the number of lawsuits. However, the incorporation of the advertising platform in 2006 has increased the number of copyright lawsuits (Breen, 2002). YouTube (2015) indicates that one of the laws involves the restriction of the materials uploaded on the website. Based on the website:
“Under the Digital Millennium Copyright Act (DMCA), YouTube isn’t responsible for the copyright violations of its users, provided the company removes that content when notified by the rights holders” (Mashable, 2015).
The DMCA is a copyright law in the United States, and it protects the company from copyright infringement among the users. Specifically, the company cannot be sued if the copyright materials are removed after complaints from the owners. According to Ottaviani and Pudelka (2007), the DMCA’s section 512 offers a safe harbor for the company since violations from the users are inevitable. However, scholars have argues that one of the weaknesses of the DMCA is that it is too old a law (10 years) to protect a company that keeps changing its technologies.
It is important to say that the presence of the DMCA does not mean that the company will not face lawsuits but rather acts as a platform through which such cases can be argued and expose their infringements to their right through. There are three main requirements stipulated by the DMCA in a bid to protect the company from copyright liability (Ottaviani & Pudelka, 2007). The first requirement, a company has to fit the definition of a “service provider” (Ottaviani & Pudelka, 2007, p.10).
YouTube is recognized as a service provider under the DMCA. The second requirement, a company has to have copyright laws that terminate the accounts of those users who infringe the copyright law. You tube’s copyright law stipulates that repeat offenders of copyright infringement should have their accounts terminated. The last requirement, a company, should never alter the procedures in which copyright owners protect their materials. It is important to know that YouTube does not interfere with the copyright protection processes of the users. Therefore, the DMCA protects YouTube since the company complies with the three requirements. Conversely, the DMCA has not always provided a safe harbor for all the copyright infringement lawsuits against the company, which is another weakness of the law.
YouTube introduced better technologies to curb copyright infringement; in establishing the Content ID system. This system enables the company to get prompt notifications concerning infringement and apply the takedown requests. Mashable (2015) indicates that the Content ID allows the owners to get notifications when their materials are subjected to copyright infringement. It was established in 2007 after the website stakeholders agreed that technology would help the company to avert infringement. Specifically, the system applies fingerprinting technologies on films and music uploaded on the site.
In contrast, the service faced challenges because the available fingerprinting technologies were not very effective. In reference to YouTube (2015), the music or film owners must submit copies of their materials or identification files. These files are then compared with the materials uploaded by the different users. In addition, the company affords the owners of copyrighted contents the right to develop and give policies to their works to prevent infringement.
Mashable (2015) identifies three policy alternatives given to the owners. These policies explain the repercussions of any copyright infringement among users. First, the block policy, which stipulates that in case of a content match on a video, the company should remove it. Second, the track policy, which allows the content to stay online after the company, discovers any copyright infringement. However, the owner of the material is given the opportunity to track the number of views and is given the information concerning the reviewers. Lastly, the monetize policy allows the owners to serve ads on their materials. In addition, they are given any revenues that result from such advertisements. Users who infringe on the copyright of the videos are also subjected to the ‘copyright school’ to learn more about the policies. Their accounts are terminated until after the completion of the copyright course.
YouTube’s (2015) doctrine of fair use also provides a solution in dealing with copyright infringement in the United States. The doctrine allows users to reuse copyright-protected materials without seeking consent from the owners. However, one of the major weaknesses of the web service is that it lacks proper guidelines on the actions that fall under fair use. Additionally, there are variations concerning the freedom of fair use.
Thus, the application of the doctrine depends on the kind of content, the objectives of the materials, and the locality of the users. Many users accused of copyright infringement tend to argue that they are protected by the fair use clause. Ottaviani and Pudelka (2007) argue that American law is not very clear in regard to copyright infringement by service providers like YouTube. Despite this, the penalties can either be civil or criminal. In regard to the civil penalties, the guilty parties are ordered to pay the real or statutory compensations. In the criminal penalties, the guilty parties are subjected to imprisonment for up to five years or monetary penalties of up to half a million dollars.
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The current research applies a case study methodology for the collection of data. According to Simons (2009), case studies are used as an alternative to surveys and other complex research designs. It is a critical method that is effective in narrowing a very broad area of study. Moreover, it allows the creation of hypotheses that can be tested further using other research designs by having much literature review. The author notes three instances that a case study design becomes the ideal methodology. The first one is when dealing with an explanatory question, which is what I am doing in this paper: The research will explain the events that followed various copyright infringement cases against YouTube.
The second one is when comparing the research of a certain aspect within its real-world context. The third, case studies are used in evaluations. The current research presents and compares different real cases associated with copyright infringement of YouTube. Then I will explore an analysis presenting similar cases, outlines, also the responses from the users and the court rulings toward the infringement of the copyright of music and films. These cases are then compared with each other and their implications in communication and culture outlined.
Cases of copyright infringement by YouTube
Case 1: Pharrell Williams versus YouTube and Viacom versus YouTube
According to Koziol (2014), Pharrell Williams was the representative of a group of Musicians who sued YouTube due to copyright infringement. The musicians argued that the service had posted over 2,000 songs belonging to Global Music Group. However, YouTube refused to remove the music from the site. The suit stated that the service had failed to provide evidence that it had the performance rights relating to the songs. Although the lawsuit had not been filed yet, the lawyers speculated that the case would earn the musicians about one billion dollars banality. In its defense, YouTube argued that they had obtained multi-year licenses to the service to allow them to upload such music freely on the site. Pharrell’s lawyers demanded to see the right performance licenses, but again, YouTube was not cooperating with them.
According to Ottaviani and Pudelka (2007), these licenses allow service providers to use songs uploaded on their sites for public broadcast. Koziol (2014) notes that the debate came amidst a planned unveiling of Music Key by the service. The subscription would allow the service to upload concert videos. In this regard, the lawyers wanted contended music to be excluded from the platform. The law affords the service the freedom not to take action until the owners identify the type of infringement. Although the case had not yet moved to court, Koziol (2014) argues that Pharrell is unlikely to win the case based on the decisions of past lawsuits against the company. The author predicts that Pharrell will lose the case by indicating that:
“Those who take on Goliath better watch out. YouTube has dodged several bullets over the years, including a $1 billion lawsuit filed by Viacom, a cinema and television company, in 2007” (Koziol, 2014).
Case 2: YouTube versus Viacom
Peguera (2011) indicates that the lawsuit presented grave violations of copyright by the service users. Viacom accused the service of allowing the users to upload thousands of videos owned by the company without a prior agreement. In this regard, Viacom argued that the violations were real and not protected under the DMCA. In Viacom’s lawsuit, the focuses were on the principles of secondary liability and third party violation of copyright violations. The question now, what is a secondary liability? The author defines secondary liability as a type of violation where the service provider contributes to copyright infringement by the users. In regard to secondary liability accusations, the DMCA was unable to provide a safe haven for the service, which clearly was one of the weaknesses for the users to be protected.
Additionally, the two companies had different opinions over who should bear the burden of third party copyright infringement. Viacom stated that YouTube should bear the responsibility of its user’s violation of the copyright. Mashable (2015) indicates that the regulations of YouTube blame secondary liability on the users. Peguera (2011) argues that the users had violated the doctrines of contributory and vicarious accountability. As a result, YouTube was accused of failing to control the actions of the users. However, the article does not assess the response from the users. Koziol (2014) states that the court ruled in 2010 in favor of Viacom.
The judges argued that YouTube lacked adequate information on the users who had uploaded the copyrighted materials indicating its lack of control over the users. Moreover, the court stated that the service had not removed the materials even after the lawsuit by Viacom. However, the parties sorted the matter out of court. Breen (2002) focuses on the same case and describes it as a “murky moving target” (152). The author argues that the DMCA is a safe harbor for most of YouTube’s copyright infringement cases. However, the service needs to alter its copyright guidelines to conform to the requirements of the courts in the United States.
The two cases provide relate to music infringement and provide evidence that YouTube’s users play a huge role in most of the copyright infringement cases. As it was clearly implied in the reading of Van Dijck that YouTube, in its mechanism, allows users to produce and distribute their own cultural content :
“YouTube’s case perfectly illustrates the need for a more comprehensive approach to the user agency.. User agency in the rhetoric of production rather than consumption”(Van Dijck, 2009).
It is also clear that the company has been unable to control the actions of the users concerning the upload of videos. While the first case focused on third-party liability, the second case focused on both third party and secondary liability. However, both cases argued that the DMCA did not offer a safe haven for the copyright infringements presented. Moreover, the first case was merely an accusation, and the musicians had not yet filed the lawsuit. In the case of Viacom, the lawsuit had already been filed, and the court ruled against YouTube. In the case involving Viacom:
“The complaint frames YouTube as an Internet pirate seeking its fortunes by brazenly exploiting the infringing potential of digital technology” (Ottaviani & Pudelka, 2007, pp. 9-10).
Generally, both cases are not as different as they focus on similar copyright infringement by the service users. As it was said before, music plays an important role in the promotion of culture (Ottaviani & Pudelka, 2007). Copyright infringement limits the production of music, as the real owners of materials are not recognized. Thus, they are unable to produce music, which is a critical part of American culture.
Case 3: Rand versus YouTube’ and Garcia versus YouTube
The third case focuses on Rand Paul, whose presidential announcement clip was pulled down by the service. In reference to Bump (2015), the video was removed due to a copyright infringement claim by Warner Music Group. The removal was based on the Content ID system. As aforementioned, YouTube’s (2015) Content ID system consists of a database in which videos are checked for copyright infringement upon downloading. If they discover a match, the copyright owner has the authority to block the material. In this case, the content owner was Warner Music Group. The group indicated that the video contained the song “shutting Detroit Down” (Bump, 2015), which belonged to it.
The song was a lamentation of the dilapidating economy and had been produced some years back. According to Bump (2015), the Warner Music Group argued that the clip was a violation of the fair use doctrine and had abused the DMCA procedures. In the case of violation detection on the Content ID technology, the user is given an opportunity to settle the dispute with the owner before the video is uploaded again. Bump (2015) argues that the Warner Music Group should have first checked the presidential aspirant’s statistics before pulling down the video as it would have been an advantage for them in terms of an increase in revenue.
Case 4: In the fourth case concerning Cindy Lee Garcia and YouTube
Lawrence (2015) states that the actress was misled by her producer into making an anti-muslim movie. The actress thought she was making an adventure film. The film was then posted on YouTube, and it contained a manipulated account of the life of Prophet Mohammed. The trailer was 14 minutes long, and the actress’s voice was overdubbed with lines supporting anti-Muslim demonstrations.
As a result, Muslims in Egypt protested, and an order of arrest and killing was issued against all the cast in the film. As a result, the actress began to receive death threats, which led her to request the DMCA to order a takedown notice. Despite her letter to YouTube requesting the video to be pulled down, the service did not agree. She was angered by the response and moved to court, claiming copyright infringement of her material. In the court case held in Los Angeles, the judge ruled that the actress was unable to provide evidence of copyright and ownership of the film. Thus, the judge denied her motion and claimed that the actress had delayed in seeking a ban in the film after watching it. She appealed to the Ninth Circuit, which agreed to issue a secret order stating that the video should be blocked from the site.
Google was also ordered to take down similar videos against Muslims and prevent further uploads. However, when she went back to the court, the judges argued that there was no evidence that the order was issued by the Ninth Circuit. After several court sessions, the judges contended that the actress was not an author of the material, and the film was not her original work. Despite this, the court ruled that the video be pulled down as the contents were altered, and Garcia’s voice had been dubbed. Lawrence (2015) notes that the actress has constantly been complaining that the video is available on the site from time to time as the users keep on uploading it. Currently, Google has filed another petition for the case to be reconsidered.
While the copyright infringements in the two cases are different, they both relate to violations relating to the film. The first case deals with secondary liability in which the presidential candidate, as a user, uploaded a clip containing copyrighted materials (Bump, 2015). In reference to YouTube’s (2015) copyright regulations, all contents uploaded by the users have to be free of copyrighted content. Moreover, the site has the authority to remove the content after a formal complaint by the owner. Although the second case was presented as a secondary liability case, the material was not copyrighted. Moreover, the complainant was not the owner of the clip. Lawrence (2015) notes that the case could be argued under the doctrine of fair use. Additionally, Garcia did not present any formal agreement with her producer concerning the use of the video.
Thus the producer was the owner and had the freedom to alter and upload the video. Similar to the first cases, these cases limit the role of film in culture. This is become such violations prevent the enjoyment of film upon takedown. The removal of Paul’s campaign video is likely to have grave impacts on his popularity and the course of his political career. Similarly, Garcia’s portrayal as an anti-Muslim activist in the video had a negative influence on her life. The fact that YouTube users keep on re-uploading the video is an indication that the site has failed to take full control of the copyright infringement issues. Perhaps, more advanced technologies are required to promote their copyright regulations and ensure that the users adhere strictly to them.
Case 5: YouTube versus fair use
The fifth case deals with the upload of remix videos as a form of copyright infringement. Collins (2014) notes that many users tend to apply the doctrine of fair use in defending the upload of remixes. Moreover, it is difficult to prevent the production of remixed videos due to the advancement in technology. Most of these remixes are a modification of the existing copyrighted materials. As aforementioned, the doctrine of fair use allows users to upload materials without seeking permission from the owners. The doctrine has been reported to infringe on the copyright law of the United States.
Particularly, the law indicates that the owners must have exclusive rights to their materials. Thus, fair use is a form of copyright infringement. In the case of Jonathan McIntosh versus YouTube, the user uploaded the video “Buffy vs. Edward” (Collins, 2014, pp. 93). The service removed the video claiming copyright infringement as the user had included the audio track from “Twilight” Collins, 2014, pp. 93). The track belonged to Lion’s gate. They claim that the video was protected by the fair use clause was rejected by the service, and his account deactivated. Although the case did not move to court, it presents an example of the violations relating to the fair use clause.
Case 6: In the case between Stephanie Lenz and YouTube
Jampol (2013) reports that the user uploaded a video titled “Let’s Go Crazy #1” (9), which focused on her children. Later the Universal Music Group claimed that the user had included several titles of songs belonging to Prince. The Group was responsible for the musician’s copyrights and hence requested the service to remove the video. After removal, Lenz submitted a complaint indicating that the clip was protected by fair use. After taking the case to the courts, the judges sided with Lenz, indicating that the clip was uploaded with “good faith belief” (Jampol, 2013, p. 9). The court also noted that the Universal music group had failed to recognize the fair use doctrine when uploading the music. The motion of the group was denied even after proceeding to trial.
In summary, the two cases relate to music infringement and are an indication of the lawsuits that relate to fair use doctrine. While the video in Johnathan’s case was removed, Lenz won the case against the Universal Music Group. In the second case, the judges argued that provided there is evidence that a user uploads a copyrighted video with “good faith belief” (Jampol, 2013, p. 9), he or she should be protected under the fair use doctrine. Both cases are an indication of the discrepancies that exist in applying the fair use clause under the DMCA. Ottaviani and Pudelka (2007) recommend the evaluation of the fair use clause to ensure that it is applied equally among the users. Remix videos are likely to promote the production of music and the promotion of culture. However, this is only possible when users respect copyrighted materials and apply the fair use doctrine properly.
As aforementioned, copyright infringement limits the production of music and films. Since the owners depend on the uploaded contents as a source of revenue, copyright infringement is likely to prevent them from producing music in the future ( Ottaviani & Pudelka, 2007). Additionally, entertainment through film and music promotes cultural identity. Different culture takes pride in different kinds of music and films. An example is hip-hop music, which is known to promote African American culture. Thus, copyright infringement has negative impacts on the promotion of American culture. Specifically, it limits communication and prevents the distribution of entertainment materials.
The current research represents the issues surrounding copyright infringement by YouTube. The research utilizes a case study research design to describe various lawsuits relating to YouTube’s copyright infringement. Based on the analysis, it is clear that most of the copyright infringement cases have been caused by the users. Depending on the ruling, the contents are either retained or removed from the platform. In summary, YouTube has faced many lawsuits in the past and has been accused of failing to control the actions of the users. It is clear that the infringement has negative implications of communication and culture.
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Collins, S. (2014). YouTube and limitations of fair use in remix videos. Journal of Media Practice, 15(2), 92–106. Web.
Jampol, N. (2013). Lawsuits for allegedly improper takedown notices face uphill battle. Intellectual Property & Technology Law Journal, 25(8), 8-10. Web.
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