How Much Will Youtube and Google Pay?

The partially futile battle by some copyright owners to maintain tight control over their copyrights and exploitation of same continues in the Football Association Premier League Limited, et al. v. Youtube, Inc., Youtube, LLC and Google, Inc.

The case is a class action suit begun in 2007 by the Football Association, Bourne Co., Cherry Lane Music Pub. Co., Inc., and a host of other plaintiffs who seek a variety of remedies, both monetary and equitable. (Equitable remedies include injunctions from using material and imposition of technical measures to prevent infringement.) (A copy of the Second Amended complaint can be read right here.)

Most of the allegations in the complaint still stand, but this week the court knocked out claims by some foreign copyright holders to statutory damages and attorneys’ fees. The decision has little impact on the basic claims and issues in the lawsuit, however, which alleged that Youtube (and by extension, Google), “materially contribute to [infringing activities by uploaders] by, among other things, providing the means and facilities to infringe; inducing, encouraging or facilitating infringement; providing functions designed to proliferate unauthorized copies of Protected Works, without the authorization of the rights owner; and by enabling and encouraging users to engage in the unauthorized copying and dissemination of infringing copies of works.” (See paragraph 77 of the Second Amended Complaint.)

What is the importance, then, of the court’s ruling? The simple reiteration of the principle that foreign copyright holders may not seek statutory damages and attorneys’ fees unless they register their copyrights with the United States Copyright Office. Foreign copyright holders should take notice, as statutory damages may be the only monetary damages available in many cases. However, foreign copyright holders may still seek actual damages (i.e., profits earned by the defendants and which are attributable to the infringing action) and equitable relief. These are facts that the mainstream media seem to have missed. Reuters, for example, reported that “the judge ruled that damages are not available for any foreign works that were not registered in the United States, except those that fall under a ‘live broadcast exemption’ in the Act.” But what the court ruled was that STATUTORY damages are unavailable for unregistered foreign works which do not satisfy the live broadcast criteria .

The result wasn’t a surprise. According to the plaintiffs’ attorneys, the plaintiffs are, “pursuant to section 411(b) of the U.S. Copyright Act, entitled to all remedies under U.S. copyright law, including statutory damages and attorneys’ fees,” but this was less a statement of the law than an invitation to the court to modify it. This the court declined.

Youtube and Google are probably going to be found liable BIG TIME in this lawsuit, since at the very least they have gained substantially from acts of copyright infringement on the part of those who upload content. However, as with previous lawsuits against online services it will probably appear to have serious repercussions while changing very little — least of all the culture that wants free content. This can be seen right in the plaintiffs’ complaint where they allege that after Youtube removed a clip of the Man U v. Tottenham match of August 26, 2007, it was re-posted several times, one with the introduction “FUCK THE NETRESULT WANKERS,” a reference to the monitoring and takedown agency used by one of the lead plaintiffs. The plaintiffs in this case would hold Youtube legally responsible for such re-postings (and they alleged that even an infringement lasting eight hours is intolerable), but the Digital Millennium Copyright Act (the “DMCA”), which requires takedown notices followed by compliance, protects Youtube from just such a result.

I don’t necessarily have an answer how the balance should be struck between copyright holders and the free flow of information online, but the answer to the question “Should Youtube and Google be able to make a lot of money and pay copyright holders nothing unless they agree to Youtube’s  unilateral negotiations?” must be “no.”

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