The clash between old and new forms of media is increasingly coming to the forefront of intellectual property law, with the Internet blurring hitherto clear distinctions in both legislation and precedent. This is particularly true of YouTube. It may well be the most successful information disseminator the world has ever known but, from the legal perspective, some of its content and practices could be seen as comparable to that of such digital 'pioneers' as Napster and latterly the Pirate Bay.
The opinion referred to has its origins in a vast class action copyright infringement suit initiated in New York back in 2007 against Google and its YouTube subsidiary by a variety of sporting and media enterprises, notably Scotland's and England's main football leagues. It is worth noting that this claim was raised shortly after the Viacom conglomerate had also begun proceedings against YouTube in a similar billion-dollar lawsuit and that - after running in parallel for a time – the two claims have now been consolidated for the purpose of clarity. This conjoined case awaits a court hearing.
The plaintiffs had challenged that YouTube benefited from, and had full knowledge of, numerous copyright breaches in terms of uploaded content under the Digital Millennium Copyright Act 1998 and sought damages accordingly. However, in the opinion published on 3rd July, District Judge Louis Stanton held that statutory damages were not available for foreign works not registered in the US, other than those in the live broadcast category. This did come with the caveat that an absence of registration could be dispensed with if the owner of the copyright served the infringer with an 'advance notice of potential infringement', which the Premier League is believed to have done.
Furthermore, he confirmed that punitive damages could not be pursued for any of the claims under the DMCA 1998; reiterating a point made in the first Viacom hearing.
Comment and Comparison
In practical terms, this ruling suggests that a burden is placed on foreign firms to register their works with the US Copyright Office within 3 months of publication, if they wish to retain the right to pursue for statutory damages in respect of such works. This differs from current UK law, which provides that no formalities need be observed in order for the owner of a copyright work to raise an action for its protection.
UK law also allows plaintiffs/complainers to continue pursuing remedies such as actual damages, disgorgements of profits and injunctions/interdicts as well as seeking statutory damages in respect of the live broadcasts. The former are, however, more difficult to prove and likely to be worth less than the proposed statutory damages would be.
The opinion given is maybe more notable for what it does not tackle though. Wholly absent is any mention of the question as to whether or not the offending videos should have been permitted to appear on YouTube in the first place or, alternatively, YouTube's responsibility in engaging users to upload these videos.
As far as the 'advance notices' are concerned, the onus will be on YouTube to show that they did all they could to remove the infringements once informed of the breach.
It is these latter two issues which will dominate proceedings when the conjoined case is finally held, likely to be some time at the beginning of next year.