While the Viacom v. YouTube (Google) lawsuit gets the most press, the earlier-filed Tur v. YouTube likely will tread the same path through the DMCA, earlier. Just issued was an order denying cross-motions for summary judgment on the DMCA exemptions. Judge Cooper observed that there “is clearly a significant amount of maintenance and management that YouTube exerts over its website [after videos are uploaded], but the nature and extent of that management is unclear.” Summary judgment was denied, inter alia, because “there is insufficient evidence before the Court concerning the process undertaken by YouTube from the time a user submits a video clip to the point of display on the YouTube website.”
The ruling notes the pre-conditions a website must meet to be eligible for the DMCA safe harbors. While not at issue on these motions, 17 U.S.C. Section 512(i)(1)(B) requires that the site operator “does not interfere with standard technical measures.” The statute further explains that these are “technical measures used by copyright owners to identify or protected copyrighted works and [etc.].”
One wonders whether clipping the ‘money shot’ from a video, uploading that excerpt, and converting it to Flash or other view-ware, involves acts that “intefere with,” or that do not “accomodate” the technical aspects of the original work that “identify” it as that of the copyright owner? The legislative history, and indeed the statute itself, suggests that these “standard technical measures” result from some standards-setting “process.” 17 U.S.C. Section 512(i)(2)(A). However, the video format used by the copyright owner is one promulgated by a standards-setting process, esp. if the original was not in Flash. On that basis, clipping part of it, and converting the format would be, IMO, interfering with a feature of the work that helps identify it.
Congress, in its heavily-lobbied wisdom, has shown some tendency to coin terms when writing laws that try to adapt copyright to emerging technologies. Try to read the foregoing statutory provision on “standard technical measures” that are not to be interfered with, then skip to 17 U.S.C. Section 1202 and read the prohibitions against those who “intentionally remove or alter any copyright management information.” There seems some possible overlap between “standard technical measures” and “copyright management information” since both deal with “identifying” information conveyed with the copyrighted work.
Whether YouTube can fit its model within the confines of the DMCA exemptions from liability remains to be seen, but unauthorized versions of copyrighted works will continue to be seen on YouTube until the law is construed.