Plenty of folks, from copyright lawyers to Internet entrepreneurs to investment bankers, have been watching the long-running legal battle
between Viacom and Google/YouTube carefully, well aware that a decision
in the case could have a profound effect on the future of the Internet.
But most YouTube users probably haven't given it the same attention.
They should, and in an amicus brief filed in support of YouTube last week, a group of YouTube video creators explains why.
Calling themselves "The Sideshow Coalition" (because Viacom has
called their interests a "sideshow"), these creators tell their own
personal stories of how YouTube has helped them find a broader audience
than they had ever imagined they could reach, with all kinds of
unexpected effects. A few examples from the brief:
- Barnett Zitron, who created "Why Tuesday," a political video blog
focused on increasing voter turnout that has helped register over half
a million college students to vote.
- Mehdi Saharkhiz, who created a YouTube channel to spread awareness
about government human rights abuses in Iran and frequently posts
videos from contacts in Iran who record the videos on their cell phones.
- Phillip de Vellis, who created and uploaded to YouTube a video
supporting President Obama’s candidacy, hoping it would be viewed by a
few thousand people. "Instead, millions viewed it and the San Francisco
Chronicle described it as 'a watershed moment in 21st century media and
political advertising.'"
- Arin Crumley, who could not get conventional financing for a film
he wanted to make, and decided instead to self-produce it and post it
to YouTube. The first full length movie ever uploaded to the site, it
was viewed more than a million times, and then the Independent Film
Channel picked it up.
- Dane Boedigheimer, who wanted to be a filmmaker since he was 12
years old and would spend hours each day with his parents’ 8mm camera.
"In the conventional media, it would have taken years before he might
even have a chance to direct films. However, with YouTube, Boedigheimer
was able to create a series called 'Really Annoying Orange' whose
episodes have been viewed 130 million times."
These creators praise YouTube for removing the gatekeeper between
them and their audiences. “We can now be our own television and cable
stations and our own record labels and record stores. We suspect that
the threat that truly concerns Plaintiffs is not copyright infringement
but just competition.”
Unlike most of the parties and amici who have filed in this case (including EFF),
these friends of the court don't focus on the legal doctrines at stake
in this case. Instead, they remind us why these legal issues matter,
i.e., what's really at stake in a case that tries to hold
intermediaries liable for what users post online:
It is pretty clear that on a scale of incentives to censor, the
billion dollars that Plaintiffs seek in this lawsuit rates pretty high.
If YouTube is made responsible for everything that we say, then
naturally YouTube will want to exercise control over what we say. No
online service would risk enabling the universe of users to speak in
their own words if it faced liability for anything that anyone said.
Therefore, we ask that as the Court decides this case, it consider
not just the interests of those who appear in the caption, but also our
interests as creative professionals and the interests of the hundreds
of millions of people who have viewed our work.
We are not a sideshow. We are what YouTube is all about and what this lawsuit should be about.
Just so.
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What legal battle?
Viacom v. YouTube
In March 2007, Viacom sued
YouTube and Google, alleging that they should be held responsible for
the copyright infringements committed by YouTube users. The lawsuit
seeks more than $1 billion in damages and came on the heels of Viacom's
delivery of more than 100,000 takedown notices
targeting videos allegedly owned by Viacom (which YouTube promptly
complied with). Shortly after the Viacom lawsuit, a number of class
actions were also filed on behalf of sports leagues, music publishers,
and other copyright owners against YouTube, all based on the same
theory.
These lawsuits will test the strength of the DMCA safe harbors
as applied to online service providers that host text, audio, and video
on behalf of users. The whole idea of the DMCA safe harbors was to
provide legal protections for online service providers like YouTube,
who otherwise would hesitate to create the online platforms that have
revolutionized creativity, culture and commerce. Consequently, the
outcome of this case will be important not just for YouTube, but also
for lots of other online services, including eBay, Blogger, Flickr,
Scribd, Amazon, and many others. Previous court rulings have recognized that the safe harbors apply to video hosting sites.
In March 2010, the parties in the lawsuit filed motions for summary judgment.
In April 2010, EFF and other nonprofit groups filed an amicus brief
urging the court to reject the plaintiffs' effort to undermine the DMCA
safe harbors. A decision is expected in the Summer of 2010.
The Justia case page provides a more complete set of filings in this case.
Electronic Frontier Foundation