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The $1 billion lawsuit that Viacom filed against YouTube last year has the potential to redefine electronic copyright law, if the slowly-moving case ever yields a ruling, rather than a settlement.
As it crawls its way through the court, we caught up with YouTube's top lawyer, Zahavah Levine, when she spoke to a group of Web-savvy musicians and technologists at the San Fran MusicTech summit.
In this segment, Levine laid out all the challenges that YouTube faces in trying to follow the Digital Millennium Copyright Act, or DMCA, which YouTube is using as its defense against Viacom.
According to Levine, Google has licensing agreements with the four major music labels and with organizations that represent independent musicians. While relatively easy to obtain, those agreements only cover reproduction rights for songs.
But when it comes to obtaining performance rights from music publishers, Google faces "extreme challenges."
"Trying to obtain publishing rights is a quagmire," Levine says, because of the complexities of copyright law and the definitions of different types of digital music experience, whether it's a download, a stream or a live stream.
To combat infringement, YouTube has implemented several features including its 10-minute limit which prevents users from uploading full-length shows in one piece.
It lets copyright owners submit reference files that YouTube can match against material on the site, and also has built an interface that lets copyright owners to search for and identify infringing works.
But rather than taking it down immediately, it first asks the copyright owner whether they want it removed, or would prefer that Google sell ads around it and split the revenue.
"We will of course take anything down that a copyright owner asks us to," she says.
That last point is the heart of the company's defense, because the DMCA provides safe harbors for Internet service providers, like YouTube, who remove infringing material when asked.
Viacom's argument has been that YouTube makes it too easy for the material to get on the site in the first place.
While other big studios are moving forward in different ways, either by creating their own sites, as News Corp. and NBC did with Hulu, or by signing licensing agreements with YouTube.
Which model proves most effective will be determined in the marketplace -- and in the courts.
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