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YouTube is UsTube: Creators Step In to Defend YouTube ( 0) Printer friendly page Print This
By Corynne McSherry
Electronic Frontier Foundation
Wednesday, Jun 2, 2010

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.

----------------------------

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




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