Journalist and helicopter pilot Robert Tur filed his suit
against YouTube before it was bought by Google, and his
is the first copyright case against YouTube to reach the
courts.
Tur is the owner of news footage of dramatic events such as a
car chase involving OJ Simpson and footage of the 1992 Los Angeles
riots. He sued YouTube because users had posted and viewed some of
his footage on the site.
He claimed that because it was making money from his footage
through web page advertising, YouTube was not entitled to the 'safe
harbor' protection of the Digital Millenium Copyright Act (DMCA).
YouTube in turn asked the Court to rule that it was entitled to
that protection.
Both sides in the case wanted Judge Florence-Marie Cooper of the
US District Court for the Central District of California to rule in
their favour with a summary judgment. Judge Cooper rejected those
applications and the case will proceed to the next stage of the
trial.
The crucial issue in both of Judge Cooper's rejections of
the applications for summary judgments was the degree of
control exerted by YouTube over the content posted by users on its
site.
The DMCA allows exemptions from copyright infringement suits to
certain digital service providers who are only conduits for
information, such as internet service providers.
In order to qualify, a service provider must fulfil a
number of conditions. Tur argued that because YouTube failed
to establish one of the conditions for qualification for 'safe
harbor' protection it should not be allowed that
protection.
In particular, Tur said that because YouTube received financial
benefit from its use of his material by accepting advertising
on the page on which it was displayed, it was not entitled to
the exemption.
In delivering her opinion Judge Cooper said that Tur's
application must fail because financial benefit is only considered
once it is established that the service provider is in control of
the offending material.
"As the statute makes clear, a provider's receipt of a financial
benefit is only implicated where the provider also has the right
and ability to control the infringing activity," said Judge
Cooper. "Tur has not presented any evidence to the Court, despite
numerous opportunities to do so, that establishes that YouTube had
the right and ability to control the allegedly infringing
activity."
YouTube had asked Judge Cooper to rule definitively that it was
protected by 'safe harbor'. She refused to do that because she said
that though Tur had not proved that YouTube was in control of the
material, neither had YouTube proved that it was not.
"The 'right and ability to control' infringing activity, as the
concept is used in the DMCA, has been held to mean 'something more'
than just the ability of a service provider to remove or block
access to materials posted on its website or stored in its system,"
said the Judge. "Rather, the requirement presupposes some
antecedent ability to limit or filter copyrighted material."
Judge Cooper refused to rule on the applicability of the
exemption to YouTube, though, saying that its processes were not
clear enough for such a ruling.
"There is insufficient evidence before the Court concerning the
process undertaken by YouTube from the time a user submits a video
clip to the point of display on the YouTube website," she ruled.
"Thus, there is insufficient evidence from which the Court can
determine YouTube's right and ability to control the infringing
activity."
