LOS
ANGELES
Larry Richard is one of the millions to
have discovered the world of YouTube, the free
website that allows people to post, watch, and
share video clips. When he receives a link to
the site, usually via e-mail, he spends a few
moments to click and watch a clip on his
computer screen - sometimes a video of a
friend's singing recital, other times a
snippet of a foreign commercial or a monologue
from late-night TV.
"It's entertaining, it's information, it's
a community of people sharing things," says
Mr. Richard, a marketing consultant in Santa
Monica, Calif. But is it legal, given that at
least some of what he's watching is
copyrighted material being disseminated by
individuals who clearly do not hold the
copyright?
The law on this matter is murky, and likely
to get murkier before it gets clearer, say
experts in intellectual property law.
Several companies such as Time Warner have
been threatening YouTube with copyright
infringement lawsuits. Now that Internet giant
Google has purchased YouTube, experts expect
that the rampant disregard of copyright law
shown by early YouTube users, at least, is
likely to get resolved - but they caution that
each successive new technology can put early
users, in particular, on nebulous legal
ground, especially if financial profit is
involved.
"As more and more technology comes along,
the legal underpinnings governing them are not
becoming clearer," says Mark McCreary, a
partner in the Technology and Venture Finance
Group of Fox Rothschild, which handles
intellectual property cases. Increasing
ability to download video clips from YouTube
and to watch videos on iPods and cellphones
will present users with more opportunities to
violate copyright - wittingly or unwittingly,
he says.
Still, those who watch videos at YouTube -
whether or not such content is copyrighted -
are unlikely to be pursued with the same
fervor with which the music industry
prosecuted those who downloaded music free of
charge via the file-sharing website Napster,
say Mr. McCreary and other experts.
"The very big difference between today's
YouTube and the music-sharing of MP3 files of
several years ago is that you have to watch
and you can't - absent the knowledge of
advanced hackers - copy it for your own use,"
says David Axtell, an intellectual property
specialist at the law firm Leonard, Street and
Deinard in Minneapolis. "During Napster's
heyday, people were making their own digital
copies and using them on their own."
But concerns should be higher for those who
actually submit videos for posting and
watching, say Mr. Axtell and others. Because
copying and distributing copyrighted material
is illegal, people who post that material on
YouTube without permission are more likely to
be held liable.
"There certainly will be more litigation,
and Google has set aside hundreds of millions
in a war chest in recognition of this," says
Kevin Parks, a copyright specialist with the
law firm Leydig, Voit and Mayer in Chicago.
On the side of the YouTubites are those who
argue that use of such copyrighted material
falls into "fair use" provisions of the law.
"It's up to the courts to continually
balance the rights of those who own
copyrighted material with the need for society
to adapt to emerging technology," says
Perry Binder,
assistant professor of legal studies at
Georgia State University.
Copyright laws, which give exclusive
legal right to a writer, editor, composer,
publisher or distributor to publish, produce,
sell, or distribute an artistic work are
unambiguous, experts say. But how many copies
of something a person may make for personal
use is far more open to interpretation by
judges and courts.
Mr. Binder says movie and TV industries
are figuring out how to handle the more
serious abuses, such as excessive downloading
by casual users, profiting from the sale of a
downloaded video, and having a website that
links to copyrighted videos, particularly if
the Web page profits from drawing traffic to
the pages.
"These people should expect 'cease and
desist' letters from attorneys and face the
threat of a lawsuit if copyrighted material is
not taken down immediately," says Binder.
For its part, YouTube directs users to
common-sense "Dos and Don'ts" at its online
help center. Users are asked not to send
pornography, videos of dangerous or illegal
acts (such as animal abuse or bombmaking),
violence, and to avoid the malicious use of
stereotypes.
"We ask our users to respect copyrighted
material and to only upload videos they have
made or obtained the rights to use," says
Jenny Nielsen, marketing manager at YouTube.
"Our policy prohibits inappropriate
content.... Users can flag content they feel
is inappropriate and once it is flagged,
YouTube reviews the material and reserves the
right to remove videos from the system."
Meanwhile, YouTube's power has prompted
content creators to see how they can make
money from the site's content that is
copyrighted. Companies such as CBS and three
major recording companies - Universal Music
Group, Warner Music, and Sony BMG Music
Entertainment - have inked deals with Google/YouTube
to share revenues generated by copyrighted
content on the site.
As part of an experimental "brand channel"
at the site, CBS in October agreed to offer
free video clips for downloading. By
Thanksgiving, 300 such clips had drawn 30
million viewers. More than 35,000 have
subscribed to the free channel and CBS claims
its "Late Show with David Letterman" now
boasts 200,000 more viewers and its "Late Late
Show with Craig Ferguson" has 7 percent more
viewers.
"YouTube has not only held the threats at
bay, but also shown it can be a revenue boon
for old media," says Chris Taylor, senior
editor of Business 2.0 Magazine.