Google Books and Youtube: Preserving Fair Use on the World's
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MCSKIMMING.DOCX (DO NOT DELETE) 11/12/2012 3:00 PM GOOGLE BOOKS AND YOUTUBE: PRESERVING FAIR USE ON THE WORLD’S LEADING INTERNET VIDEO COMMUNITY1 Meghan McSkimming* I. INTRODUCTION Thousands of years after the Library of Alexandria was destroyed, man has used technology to change the way the world interacts with creative works.2 In the face of constantly evolving technology, copyright law is experiencing a tumultuous upheaval. In the past, accessing printed, audio, or visual materials required physical possession of an object, like a book, CD, or DVD. Today, the Internet makes information instantly accessible. In 2004, Google—following the current trend away from a print- based market—undertook a massive and unprecedented endeavor with its “Google Library Project.”3 Without first seeking copyright holders’ permission,4 Google created agreements with research libraries, scanned their print collections, and compiled a searchable digital library.5 Google would display a few lines of text as Internet search results, but not the entire book.6 To the average Internet user, being able to obtain the digital versions of books is highly desirable. * J.D., May 2012, Seton Hall University School of Law; B.A., 2009, Fordham University. Thank you to Professor David Opderbeck for his supervision and guidance, and to Brigitte Radigan for her comments and assistance. 1 GREG JARBOE, YOUTUBE AND VIDEO MARKETING: AN HOUR A DAY 20 (2d ed. 2012). 2 See Beverly A. Berneman, Putting the Google Book Settlement in Perspective: Will Looking for a Book Ever Be the Same Again?, in UNDERSTANDING COPYRIGHT LAW 2009 291, 291–93 (E. Leonard Rubin et al. eds., 2009) (beginning her discussion of the Google Books Settlement in a historical context and analogizing the Google Books project to a modern-day library of Alexandria). 3 Gregory K. Leonard, The Proposed Google Books Settlement: Copyright, Rule 23, and DOJ Section 2 Enforcement, 24 ANTITRUST 26, 26 (2010), available at http://www.nera.com/nera-files/PUB_Google_Books_Settlement_0710.pdf. 4 Jonathan Band, The Long and Winding Road to the Google Books Settlement, 9 J. MARSHALL REV. INTELL. PROP. L. 227, 227 (2010). 5 Leonard, supra note 3, at 26. 6 See infra Part III (explaining in greater detail the general information in this introductory paragraph). 1745 MCSKIMMING.DOCX (DO NOT DELETE) 11/12/2012 3:00 PM 1746 SETON HALL LAW REVIEW [Vol. 42:1745 It is convenient to search through thousands of books online, and without ever stepping foot into a library or bookstore. Copyright holders, however, were not pleased; they brought claims of copyright infringement against Google.7 The parties ultimately reached a settlement,8 but the District Court for the Southern District of New York did not approve the agreement.9 With these digital resources increasing the immediacy and ease of access to the everyman, copyright law is at a crossroads. Some believe that the expansion of copyright law should be curtailed.10 For example, Professor Lawrence Lessig states that “‘[i]f technology creates efficient ways to charge commercial users of copyright, then that’s good . but [not if] we evolve into a permission culture, where every single use of music creates an obligation to pay.”11 Indeed, with the advent of websites like YouTube, the general public’s interaction with creative works has most likely increased.12 YouTube enables users to upload any video, copyrighted or otherwise, to the site for viewing by others, without a license or permission from rightsholders.13 From its beginnings as a personal video-sharing site, YouTube is now “the world’s leading video community on the Internet.”14 YouTube reports staggering statistics. Each month, more than 800 million unique users watch videos on the site and users upload seventy-two hours of video per minute.15 This massive collection of videos provides the public with convenient, on-demand access to video and music, but is fraught with legal uncertainty. Members of the public may believe that a YouTube video is in the public domain16 simply because it is on the site and 7 Id. 8 Order Granting Preliminary Approval of Amended Settlement Agreement at 2, The Authors Guild v. Google, Inc., 770 F. Supp. 2d 666 (S.D.N.Y. 2011) (No. 1:05- cv-08136-DC), ECF No. 772. 9 The Authors Guild v. Google, Inc., 770 F. Supp. 2d 666, 669–70 (S.D.N.Y. 2011). 10 John Bowe, The Music-Copyright Enforcers, N.Y. TIMES, Aug. 6, 2010 (Magazine), at 5. 11 Id. 12 See Statistics, YOUTUBE, http://www.youtube.com/t/press_statistics (last visited July 31, 2012). 13 See Using Copyrighted Material in Your Video, YOUTUBE, http://www.youtube.com/t/copyright_permissions (last visited Feb. 11, 2012). 14 JARBOE, supra note 1, at 20. 15 Statistics, supra note 12. 16 The public domain is [t]he universe of inventions and creative works that are not protected by intellectual-property rights and are therefore available for anyone to MCSKIMMING.DOCX (DO NOT DELETE) 11/12/2012 3:00 PM 2012] COMMENT 1747 available online.17 Thus, these individuals might believe that they can use the online content as they wish.18 The doctrine of fair use complicates the matter. Fair use creates an exception to general copyright principles and allows the use of copyrighted material, in certain circumstances, to further the policy purposes of “public discourse and education[].”19 YouTube users’ rampant uploads of copyrighted material prompted Viacom’s March 2007 lawsuit,20 in which the rightsholder asserted direct and indirect infringement21 claims against the website.22 The key issue in the case was the statutory interpretation of the Digital Millennium Copyright Act (DMCA) of 1998’s safe harbor for service providers, codified at 17 U.S.C. §§ 512(c)(1)(A)(i) and (ii).23 The court determined that YouTube needed “actual or constructive knowledge of specific and identifiable infringements of individual items” to be held liable, instead of a “general awareness” of the presence of infringing use without charge. When copyright, trademark, patent, or trade- secret rights are lost or expire, the intellectual property they had protected becomes part of the public domain and can be appropriated by anyone without liability for infringement. BLACK’S LAW DICTIONARY 1349 (9th ed. 2009). 17 See Elizabeth Towsend Gard, Conversations with Renowned Professors on the Future of Copyright, 12 TUL. J. TECH. & INTELL. PROP. 35, 68 (2009). 18 See id. 19 Bruce E. H. Johnson & Maya Yamazaki, Copyright and the Internet, in UNDERSTANDING COPYRIGHT LAW 2010 637, 639 (E. Leonard Rubin et al. eds., 2010). 20 Complaint at 1, Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010) (Nos. 07 Civ. 2103, 07 Civ. 3582). 21 To state a claim “of direct infringement: (1) [an individual] must show ownership of the allegedly infringed material and (2) they must demonstrate that the alleged infringers violate at least one exclusive right granted to copyright holders under 17 U.S.C. § 106.” A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001). Contributory copyright infringement occurs when “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another. .” Id. at 1019 (quoting Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971)). Vicarious liability can be found where the defendant “has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities.” Id. at 1022 (quoting Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 262 (9th Cir. 1996)). 22 First Amended Complaint for Declaratory and Injunctive Relief and Damages and Demand for Jury Trial at 19–28, Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010) (Nos. 07 Civ. 2103, 07 Civ. 3582) [hereinafter First Amended Complaint]. 23 See 17 U.S.C. § 512(c)(1)(A)(i)–(ii) (2006); Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514, 519 (S.D.N.Y. 2010). See infra Part II.C for a discussion of the federal statutory safe harbor. MCSKIMMING.DOCX (DO NOT DELETE) 11/12/2012 3:00 PM 1748 SETON HALL LAW REVIEW [Vol. 42:1745 content.24 If similar litigation arises in the future, there could be a different and fairer resolution. This Comment will argue that YouTube’s current methods of handling potentially infringing content are insufficient and that an ultimate resolution of copyright claims against YouTube might include a settlement of future litigation that establishes a private body to make fair use determinations of copyrighted work. Part II of this Comment presents an overview of the sources of copyright law, including the fair use exception, interpretive case law, and the DMCA. Part III presents background information about the Google Books litigation, a general overview of the terms of the failed Google Books Settlement, and examples of other settlements of mass torts. Part IV discusses the main YouTube copyright infringement case, Viacom International Inc. v. YouTube, Inc.,25 from the Southern District of New York, and methods that YouTube and the rightsholders have used to deal with use of copyrighted material. Part V presents the potential application of a settlement-based analog to the Book Rights Registry26 in the YouTube context. II. THE FOUNDATIONS OF COPYRIGHT LAW A. Background Copyright law is rooted in the Constitution’s Patent and Copyright Clause that grants Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”27 The Copyright Act of 1976 defines copyright protection today.28 Enacted pursuant to the constitutional provision, the Act protects “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”29 Copyright, however, does not protect the underlying idea or concept expressed in the creative work.30 The Act gives the copyright holder the 24 YouTube, 718 F.