Legal opinion of a fictional scenario

Jing Ke
August, 2010
Course Title: Law and the Challenges of New Media

[Review of the facts and arguments omitted]

This case is about copyright infringement on a video sharing website which has a world-wide influence. Canada’s Copyright Act has clearly affirmed that “copyright” covers “the sole right […] to communicate the work to the public by telecommunication […] and to authorize any such acts.” The term “telecommunication” is defined as “any transmission of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system.” It is undeniably the fact that, during 2005 to 2007, before YouTube and Google implemented a filtering system and other content protection measures, YouTube users commonly uploaded unauthorized clips of TV shows and movies to the website. The uploading of unauthorized materials by YouTube users is a communication falls within the declaration of Copyright Act, and as the copyright owner of those clips, BEC’s right and interest has been infringed. The question being discussed in this legal opinion is: Should Google and its YouTube property be responsible and to what extent they are responsible for the act of copyright infringement in this case? Based on the arguments uttered by BEC and Google, there are two sub-questions to be interpreted:

1. Does Google or YouTube has the validity of being exempted from the Copyright Act?
2. Is YouTube “looking the other way” when clips from BEC’s movie and TV productions were once plentiful on YouTube website?

Based on the facts of this case and the existing legal grounds, I personally hold the opinion that Google and its YouTube property is responsible for the act of copyright infringement on YouTube website in this case. As a major video-sharing website, YouTube functions more than an innocent third-party intermediary and thus cannot be protected from being held responsible for copyright infringement committed by its users. As to the second sub-question, it is impractical to have a clear-cut evaluation over the subjective inclinations of YouTube when infringing materials burst. However, it is not the aim of this case to determine whether or not YouTube was “looking the other way” when infringement happened, and the answer of this question does not have a direct affect on the judgment of this case.

There is no doubt that the expansion of Internet in contemporary society has created serious obstacles to the protection of copyright, since current communication technology (i.e. Internet based file sharing such as P2P technology) makes it possible to exchange and transfer copyright materials worldwide among large number of people even in a few seconds. Facing the situation, current legal system is struggling to follow the pace of technology. The Theberge case [2002] and CCH v. Law Society case [2004] clearly manifest that the Supreme Court of Canada has described the Copyright Act as providing “a balance between promoting the public interest in the encouragement and dissemination of works of art and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the copyright owner from appropriating whatever benefits may be generated)”. As Sharlow J.A. writes for the SOCAN v. CAIP case [2004]:

The capacity of the Internet to disseminate works of the art and intellect is one of the great innovations of the information age. Its use should be facilitated rather than discouraged, but this should not be done unfairly at the expense of those who created the works of arts and intellect in the first place.

Section 2.4(1)(b) of the Copyright Act provides that participants in a telecommunication who only provide “the means of telecommunication necessary” are deemed not to be communicators. The “means” include all software connection equipment, connectivity services, hosting and other facilities and service without which communication could not occur. Such distinction between content supplier or obtainer of the Internet and the infrastructure of the Internet reveals the Parliament’s encouragement of the use of new communication technology in balance of the protection over copyright owners. In SOCAN v. CAIP case, Internet service providers such as Bell Canada are exempted from the copyright liability because they limit themselves to a conduit and part of the content neutral infrastructure of the Internet, thus they fall within the protection of Section 2.4(1)(b) of the Copyright Act.

However, facts are different in this case. Google, more specifically, its YouTube website, is a video-sharing website based on Adobe Flash Video technology and on which users can upload, share, and view videos worldwide. Though it provides a “platform” to share all kinds of videos, the role it plays in the telecommunication activity is different from that of the ISPs such as Bell Canada. From my perspective, YouTube functions like an entity of new media on the Internet more than merely a conduit or infrastructure. Here a simple example, suppose a school boy has used Bell Canada’s service to connect to the YouTube host server and successfully watched unauthorized three seasons of The Big Bang Theory on YouTube website, it is obviously improper to equalize the role Bell Canada and YouTube play here. Bell Canada indeed provides the physical means of communication, while YouTube is providing the videos directly and obtains profit from such activity as a commercial website.

Furthermore, as an influential medium based on Internet communication, YouTube has a responsibility to support the legal and moral system of our society and to prevent content like violence, racism, terrorism, genocide and the like as well as piracy content exist on the website. In this case, YouTube, together with the video uploader, can be viewed as a “joint content provider”. In other words, both YouTube and its users who upload the copyright infringing videos are participants in the infringement act, their responsibility in this process cannot be separated, and YouTube should be accused because it provides the platform for the infringement act and appropriates large benefits from the pirate clips.
Some would argue that YouTube can also be exempted from infringement if it proves the service it provides falls within the fair dealing defence. Section 29 of the Copyright Act provides that “Fair dealing for the purpose of research or private study does not infringe copyright.” However, facts in this case do not support the defence of fair dealing exception either. The clips of TV shows and movies are cultural product and mainly serve for the purpose of entertainment, also, BEC produce and market them in pursuit of commercial profitability. The unauthorized clips existed on YouTube website also brought YouTube huge benefits from advertising and so forth. Lastly, the dissemination of videos on YouTube website is a communication to the public. Accordingly, YouTube cannot prove its dealings with these clips are fair under s.29 of the Copyright Act.

Another argument between BEC and Google is whether or not YouTube was “looking the other way” when infringing materials were once plentiful on the website. As I stated, it is difficult to have a clear-cut evaluation over the subjective inclinations of YouTube in this case. The willful blindness of YouTube seems a reasonable deduction since every commercial organization inclines to maximize its profit, but the argument from Google is also powerful and convincing. As a matter of fact, base on present state of technology and the huge number of videos uploaded to YouTube every day, it is impractical to filter and supervise all the video content and eliminate the existence of copyright infringing materials. However, as a principle of law, a reasonable explanation of wrong-doing does not equal to an exception from the punishment. In this case, YouTube participates in the violation of Copyright Act and BEC has suffered from the economic loss, it is not determinate for the result of the case to figure out if YouTube has the intention on the infringement act or not.

In addition, the judgment of this case is not only about copyright infringement of one website, it also has some implications on the issue of proper behavior and business ethics of today’s new media. Personally speaking, our present legal system has already compromised and given enough, if not sufficient, space to the growth and uses of new technology, such as the Internet. However, there has to be a legal and moral bottom line lies in the uses. If in this case YouTube is exempted from copyright liability in its video-sharing services, it is reasonably predictable that numerous websites which provide similar services will take advantage of this judgment and expand their copyright infringing services. This goes against the “balance” Copyright Act strikes to keep and also largely disturbs existing market order. The social influence and future implications have to be considered.

Conclusively, given the facts, the legal grounds and the possible social influences, I hold the opinion that Google and its YouTube property is a participant in the copyright infringement alleged by BEC. The dealings of YouTube in this case neither falls within the protection of Section 2.4(1)(b) nor falls within Section 29 of the Copyright Act of Canada and the intention of YouTube regarding whether or not it allows or encourages the video publishing is unnecessary to identify. BEC is going to win the case.