Copyright owners are winning cases

The $1 billion lawsuit that Viacom filed against YouTube last year is likely to be the most high-profile legal case that will help define the scope of digital entertainment rights in the U.S.

But it's not the only one working its way through the U.S. courts. And the ruling by a federal judge forcing YouTube to turn over its users' download logs to Viacom is only one example where copyright owners have won at the expense of consumers and Web service providers.

Intellectual property lawyers like Fred von Lohmann of the Electronic Frontier Foundation, who worry about the RIAA and other copyright holders putting a stranglehold on digital music and videos, are nervously watching a series of court cases that have expanded the definition of distribution licenses.

The cases could result in rulings that YouTube and other online providers of digital entertainment must pay for a distribution right, as well as public performance and reproduction rights, when they want access to copyrighted music.

Just as important, though, it could be that cases involving the DMCA, which is a relatively young law aimed at settling the question of digital copyrights, could create more rulings that have a huge impact on Internet privacy.

Expanding digital rights

Any Web sites that give consumers access to digital content are already required to get both a reproduction license from the record company and a public performance license from one of the organizations that represent music publishers.

Now, the courts are accepting the argument that service providers also need a distribution license, much like a wholesaler who sells hard copies of CDs.

As von Lohmann said in May, the trend so far in these rulings is not good for proponents of free digital music, as more courts accept the argument that making digital music available to end users equates to distributing it.

"It's an uphill battle," von Lohmann says. "The fight will not be limited just to peer-to-peer file sharing,"

Von Lohmann recounted how XM Satellite Radio was sued by the RIAA for sending digital music to cars equipped with recording devices made by third-party vendors who had no contract with the company.

In January, a judge ruled against XM's motion to dismiss and the case is proceeding to trial.

YouTube's top copyright lawyer, Zahavah Levine, told musicians and technologists how these overlapping rights are making it nearly impossible to secure all the rights needed to the tens of thousands of videos uploaded to the site every day.

That video makes clear that YouTube is relying on the Digital Millennium Copyright Act for its defense against the Viacom suit.

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 experiences.

For example, a music download could be subject to additional copyright requirements depending on whether or not it's 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.

Google's reliance on the DMCA may not be enough to win the argument if Viacom's lawyers can show that Google promoted and profited from material it knew to be copyrighted.

If it keeps winning small battles in the case, Viacom may force Google into a licensing agreement that is more favorable than YouTube signed with other media giants.

Privacy implications

Google, Yahoo and others have been criticized by privacy advocates for collecting and keeping a large amount of data on the consumers who use its services.

The European Union's Web privacy watchdogs have been harsh in their review of Google's data collection practices, and have forced it to make changes in how long it holds the data to adhere to the continent's privacy rules.

Google two years ago was caught in the position of handing over data to Chinese Internet police even while it fought the Bush administration's attempt to extract search user data for an online pornography investigation.

Google eventually turned over the data, but not until after it had made it anonymous, something other companies including Yahoo, Microsoft and Cisco hadn't done.

Now that the judge will allow Viacom to get access to YouTube's download logs, Google's fence-sitting posture may become harder to hold if consumers start to worry about where their search or video-viewing data will end up.

Unlike the EU, the U.S. has no comprehensive Internet privacy rules. The law in this country will be based on any future legislation, and on a series of court cases that have not yet been decided.

One of the few rulings that has dealt with the subject came in the case of an American Marine whose family sought access to his emails after he was killed while fighting in Iraq in 2004.

The family eventually won access to the emails after Yahoo at first resisted on the grounds that giving the data to the family would violate the privacy of their user. 

That suit was settled by a probate judge and focused only on the narrow question of who owns a person's emails.

The YouTube ruling has much broader implications for how private -- or public -- consumers' Web surfing habits will be.

Google has said it will make the user data anonymous before turning it over, and Viacom's top lawyer has said the company will not use it to go after individuals, but only to determine how much of Google's YouTube business came from Viacom videos.

But that doesn't mean attorneys in some future lawsuit against Google, Yahoo or one of its rivals may not ask for data that can be traced to a user's Internet address.

Google and other ad sellers collect massive amounts of data on how consumers use the Web. That means consumers should expect that the data, once collected, is open season to any lawyer with a motion for discovery.