User-generated content took the Internet by storm last year – even as Time Magazine’s Person of the Year 2006. This content includes postings on forums, photos on Flickr, videos on YouTube, and all sorts of media on MySpace and other social networking web sites. It’s a new outlet for millions of web users who want to mix and mash their media as a way of communicating with their friends and a vast anonymous web audience.
The rub is that much of the content is protected by copyright, and the users who post the content have no legal right to do so. This is especially true of television shows, movies, and other popular content that is posted with little if any justification as a fair use. Truly fair uses might include postings of short portions of works along with critical or political commentary.
Since 1998, the Digital Millennium Copyright Act (DMCA) has provided legal protection (a "safe harbor") to web hosts who offer user-generated content, but who agree to remove it (or "take it down") in response to a valid notice (a "take down notice") from the copyright owner.
This placed the burden of enforcement on the copyright owners. It also may have aided the development of web 2.0 services that offer user-generated content.
I often recommend to my clients that they utilize the DMCA protections if their websites include user-generated content (such as forums or postings open to user comments). Clients need to follow a simple registration procedure with the U.S. Copyright Office, and publicly describe a take down procedure in their website terms and conditions.
Viacom’s recent lawsuit against Google concerning YouTube may place these DMCA protections at risk.
The question could extend much further than Google. "If Viacom wins it really casts doubt on a number of businesses that rely on hosting information for users…. Google has basically been following the advice of the best lawyers in Silicon Valley. If Viacom wins, that would call into doubt all of the business models that relied on the same kinds of legal advice," said Fred von Lohmann, attorney with the Electronic Freedom Foundation, in a recent interview with The San Jose Mercury News.
The Wall Street Journals calls this "the $1 Billion Question". Yes, that and more.
Viacom vs. Google: Test of key online law, by Elise Ackerman, The San Jose Mercury News, March 14, 2007.
Viacom v. Google Could Shape Digital Future: Lawsuit Hinges on 1998 Act Protecting Net Copyrights: Does YouTube Qualify?, by Kevein J. Delaney and Matthew Karnitschnig, March 14, 2007.
Whose Tube? Viacom Sues Google Over Video Clilps on Its Sharing Web Site, by Miguel Helft and Geraldine Fabrikant, The New York Times, March 14, 2007.