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Google's ads could kill YouTube

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Valley Justice Google's intention to drive advertising profits through the acquisition of this year's hottest web property may actually be the move that ends up killing the golden GooTube.

YouTube recently answered a copyright infringement complaint brought against it in a federal court in California and presented an argument that, while not exactly novel, may just get it off the hook.

For the moment, it looks more likely than not that YouTube will escape liability under the Supreme Court's recent Grokster decision. The only problem is advertising. If Google targets ads too aggressively, it risks pushing YouTube out of the safe harbor that it probably enjoys at the moment. This would put the service on the hook for copyright infringement, and could justify Mark Cuban's condemnation of the YouTube purchase as "moronic." On the other hand, if Google proceeds cautiously and works within the sometimes amorphous confines of copyright law, it could make Cuban's statements look more like sour grapes than prescient prognostication.

The suit in question was brought by Robert Tur, a helicopter pilot and journalist, and alleges that YouTube caused the infringement of his copyrighted footage of rioters dragging Reginald Denny out of his truck and hitting him with a brick during the Rodney King riots in Los Angeles. Tur centers his claim on the US Supreme Court's decision in the Grokster case that opened companies up to infringement liability based on an inducement theory.

That infamous decision stated, in essence, that anyone who distributes technology with the intent to promote the use of that technology to infringe copyrights will be liable for the acts of infringement committed by users. Thus, companies that "induce" infringement by distributing their products will now suffer the legitimized wrath of the content owners, despite a longstanding protection for developers of copying technologies such as VCRs, DVD burners, etc.

Tur argues that, since YouTube has created a vehicle for users to upload copyrighted material and share it with others, the site falls under the inducement theory put forward by the Grokster decision and opens YouTube up to a big stinking heap of infringement liability. YouTube has countered by claiming an exemption under the "safe harbor" provisions of that old perennial favorite, the Digital Millennium Copyright Act.

The safe harbor is one of the few decent provisions of the oft-maligned addition to US copyright law. Basically, it gives a provider of "online services" - a fairly murky term in its own right - immunity from infringement liability resulting from material stored on its servers by users, as long as the provider satisfies some basic requirements. The provider must designate an agent to respond to notices of infringing material. Upon receiving such a notice, or any other actual or imputed knowledge of infringement, the provider must act quickly to remove the infringing material. And, most importantly for YouTube's and Google's present situation, the provider must not make any money "directly attributable to the infringing activity."

YouTube has argued that it meets these requirements, and then some. The company claims to respond promptly to infringement notices, and states that it has established a DMCA agent and provided numerous links on the site directing users to the agent. It also has a policy of closing the accounts of repeat copyright violators.

Wisely, YouTube makes no mention of the advertising currently on its site, nor does it discuss the fact that it recently became the property of the king of targeted Internet advertising. It's generally best to keep such trifles out of the court's attention for as long as possible.

The company does go on to try and win favor with the court by listing additional ways that it attempts to protect copyright. The answer states that the company educates users about how to comply with copyright law. In addition, YouTube says it has implemented "technological mechanisms," including a "Content Verification Program," that are meant to locate and tag content so that it can be removed and blocked from future re-posting.

The YouTube legal staff also point to content licenses that YouTube has struck with content owners, although it neglects to mention the most recent deals that the company struck just prior to the Google acquisition. Finally, YouTube argues that the ten minute limit on posting lengths helps prevent infringement, although it must be said that many movies and shows are simply strung together in ten minute pieces and available in their entirety.

Now, it's no surprise that YouTube trotted the safe harbor argument out - it's the company's best shot at a win, and it constitutes an initial legal barrier that could nip the suit in its nascent little bud without any expensive presentation of evidence. It is surprising, though, that YouTube didn't address the underlying merits of the complaint, since the company has a strong argument on that front as well.

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