Publishers vs. YouTube: Does either side win?

Mack Reed is an online editorial consultant at Factoid Labs and publisher of

That distinctly pungent smell rising from the Internet this week is the scent of fresh legal ground being broken.

YouTube is the source. Founded barely 18 months ago, the massively successful video-sharing upstart is finding that its “Web 2.0” let’s-share-content values — the very ones pushing its “library” to 70 million videos and its audience to 100 million downloads per day — collides violently with old-school notions such as copyright law.

The idea is simple: anyone can post any video to YouTube, any time, with no formal editorial review. If a video gets complaints — for copyright problems or objectionable content — it’s taken down.

Just last week, Los Angeles helicopter pilot and news videographer Robert Tur’s Los Angeles News Service sued YouTube in U.S. District Court, alleging copyright violation for having posted one of its videos.

Tur, who piloted his chopper while wife Marika Tur shot aerial footage of truck driver Reginald Denny being yanked from his semi cab and savagely beaten during the 1992 Los Angeles riots, charged in U.S. District Court that YouTube used their copyrighted material without permission or compensation.

On Tuesday, YouTube declared the suit “without merit,” citing the Digital Millennium Copyright Act.

Even Tur’s lawyers themselves seem to admit being a bit unsteady on their feet in the realm of unauthorized newsvideo use. Their suit, quoted in the Hollywood Reporter, Esq., says in part:

“The scope of the infringements is akin to a murky moving target … Videos uploaded are not identified by copyright owner or registration number but rather by the uploader’s idiosyncratic choice of descriptive terms to describe the content of the video — tags — making it extremely impractical to identify plaintiff’s copyrighted works.”

The suit raises an interesting dilemma on the fragility of digital rights, and the liability of an open-source publisher such as YouTube for tortious behavior committed by its users:

The Electronic Frontier Foundation‘s senior staff attorney on fair use and intellectual property, Fred von Lohmann, published an article in Hollywood Reporter, Esq. just days before Tur’s lawsuit was filed, addressing this very issue.

Lohmann’s piece compared YouTube’s relatively protected legal position in copyright cases with the defeat of a similar content-sharing company that did not beat the courts — Napster:

Fortunately, YouTube has an important legal shield that was not available to the old Napster: the so-called “online service provider safe harbors” created by Congress as part of the DMCA. One provision, Section 512(c), was designed to protect commercial Web-hosting services, which feared they might be held responsible for the posting habits of their customers.

After all, if you’re Verio and hosting hundreds of thousands of Web sites for clients around the globe, you can’t afford to be sued every time one of your customers copies a photograph from a competitor’s Web site.

Because YouTube essentially stores material at the direction of its users, it can find shelter in the same safe harbor that Web-hosting providers do.

The safe harbor works like this: So long as YouTube plays by a few rules, content owners can’t collect damages from it, even if its users infringe their copyrights.

Rule No. 1 is the implementation of a “notice and takedown” system to respond to infringement notices from copyright owners. YouTube, of course, has this in place and takes down material once properly notified by an owner that a clip is infringing.

Indeed, YouTube spokeswoman Julie Supan said the firm immediately pulled Tur’s clips from its site upon learning of the suit.

What hasn’t been said in most of the coverage to date is that Tur also sued numerous TV stations and networks worldwide in the riots’ immediate aftermath for doing the very same thing — copying his video from broadcast and rebroadcasting it under their own banners.

According to Wikipedia,

[T]he last case was finally settled in 2004. Only a small handful of stations, mostly in California, already had preexisting agreements with LANS or waited to negotiate agreements before airing the footage, and thus were not sued.

In the early 90s, copyright violations were perhaps much more clear-cut, as the publishers (e.g. TV news organizations) actually employed the people who might have made unauthorized re-use of copyrighted material. Tur made a sound enough case for suing the defendants that he was able to win settlements even eight years later.

However, despite protestations to the contrary, information wants to be free in the Web 2.0 era — as in, free beer. The Web has made unauthorized propagation of information — whether copyrighted or not — instantaneous and virtually irreversible.

Videos are uploaded, downloaded and re-uploaded under different authors’ names: YouTube users know this from having tried to find the “original” version of some videos, which have been found on sites other than YouTube and recopied several times by users and mashup artists who add their own comments or edits to the source material before YouTubing them.

Millions of bloggers routinely lift information from copyrighted news stories — nearly always with due credit — and repackage it under their own banners, basically aggregating and creating new news content (and ad-driven profit streams) from existing ones. The same goes for copyrighted news photos published to the Web by AP, Reuters and numerous newspaper web sites.

Two factors may be at work in the apparent paucity of copyright lawsuits stemming from such use:

  1. since news web sites garner significant traffic from blog links pointing to them, they may be loath to poison the well, let alone alienate the audience by litigating.
  2. bloggers get away with sometimes more-than-fair-use republication of copyrighted information because no news organization’s legal department has the resources to chase them.

A possible third reason: such suits won’t stand up in court.

In short, the copyright you secure before selling and posting news video to a news organization’s site, or a share site such as YouTube, may be worth far less in the long run than the paycheck you earn from its initial sale.

With more citizen-journalists feeding more blogs and websites as the Information Age matures — with video as well as text and photos — the outcome of Los Angeles News Service v. YouTube will be well worth watching.

About Mack Reed

I am a veteran print journalist (including Phila. Inquirer '87-'90 and L.A. Times '90-'97) and a wounded veteran of the dot-bomb era (4 years building and running web portals for the now-defunct Cox Interactive Media).

My new-media and design consultancy is at

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