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YouTube wanders into copyright mire

Big issues loom as US news service sues

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Video upload site YouTube is being sued by a US television station which says it has breached its copyright, but leading intellectual property lawyers say that the site is almost certainly protected under existing laws.

YouTube hosts uploaded video clips of up to 10 minutes in length, and as well as amateur videos it hosts clips from copyright material.

Los Angeles News Service filed a lawsuit last week that claims that YouTube Inc has allowed its users to upload and download its copyrighted video footage. The clip in question shows the beating of truck driver Reginald Denny by gang members during the 1992 LA riots.

LA News Service owner Robert Tur is suing over the footage. "The scope of the infringements is akin to a murky moving target," says the lawsuit, according to news site Hollywood Reporter Esq. "Videos uploaded are not identified by copyright owner or registration number but rather by the uploader's idiosyncratic choice of descriptive terms to describe the content of the video – tags - making it extremely impractical to identify plaintiff's copyrighted works."

Though YouTube Inc has not commented on the case, a lawyer for electronic rights pressure group the Electronic Frontier Foundation (EFF) believes that the site is protected.

"YouTube has an important legal shield, the so-called "online service provider safe harbors" created by Congress as part of the DMCA [Digital Millenium Copyright Act]," wrote Fred von Lohmann at the EFF's site. "One provision, Section 512(c), was designed to protect commercial web-hosting services, which feared they might be held responsible for the posting habits of their customers."

"If you're Verio and hosting hundreds of thousands of websites for clients around the globe, you can't afford to be sued every time one of your customers copies a photograph from a competitor's website," wrote von Lohmann. "Because YouTube essentially stores material at the direction of its users, it can find shelter in the same safe harbor that Web-hosting providers do."

Von Lohmann did warn that the protection of the DMCA disappears if the business in question "receives a financial benefit directly attributable to the infringing activity", and that as the firm grows more successful it will receive less protection.

That protection is irrelevant in the UK, says another intellectual property expert. Kim Walker is a partner who specialises in media law at Pinsent Masons, the law firm behind OUT-LAW.

"In the UK it is not relevant whether or not YouTube gains economically out of it," said Walker. "They are like a hosting company, they can't be expected to know everything that goes on their network, but when someone brings an infringement to their attention they have to take it down.

"They can still be liable if they have knowledge of an infringement; they are subject to e-commerce regulations that means they are obliged to take material down."

The UK law could apply to YouTube if it could be shown that the infringement took place in Britain, said Walker. That means that a TV company, for example, could sue under UK law if the person viewing the material was UK based.

"Because this is intellectual property, the law that applies is that of the place the alleged infringement took place," said Walker. "That applies even if the servers are in Madras or the Channel Islands."

Copyright © 2006, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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