YouTube dances the copyright tango

news analysis Legal experts think popular video-sharing site obeys law but could still face court challenges to its growing business.

news analysisIf Robert Tur has his way, YouTube will soon have its day of reckoning in court.

Tur, a helicopter pilot and journalist, accused the company in a recent lawsuit of encouraging people to steal copyright material. Tur's video of the 1992 Los Angeles riots appeared on YouTube and was viewed more than 1,000 times, according to the suit, filed in a Los Angeles federal court. YouTube said Tur's claims are "without merit."

For people who follow the growing business of video-sharing Web sites, the only real surprise about the suit is that it took so long for someone to drag YouTube or one of its ilk into court. More than 150 companies that host user-generated video on their sites have cropped up in the past year, and many of them don't prescreen the material their users put up (though most, including YouTube, include a prohibition against copyright infringement in their user agreement). Too often, critics charge, the rights to those videos are owned by someone other than the poster.

"I love the YouTube service," said Steven Voltz, an amateur video maker who says multiple copies of a video he created were posted on the site against his wishes. "But I think their process to remove copyright materials isn't easy, and that is very convenient for them."

There are laws that are supposed to cover this sort of thing. In fact, the Digital Millennium Copyright Act should define a company's obligations regarding copyrights, and YouTube says it goes out of its way to follow those rules. But legal experts wonder if the courts will ultimately have to decide how the DMCA and other laws apply to this new market.

That could be an unnerving possibility to the fledgling video-sharing sites. Many are just starting to figure out their business models, and getting dragged into expensive legal tussles or being forced to implement onerous copyright-protection procedures could snuff out a new kind of business just as it's starting to get traction.

"We expected a lawsuit to come sometime," said Tom McInerney, CEO of Guba, a video-sharing site based in San Francisco. "Our feeling is that companies are going to have to make more of an effort to go above and beyond the (law) to ensure copyright material doesn't end up on their Web sites. But what we don't want is for the liability to the Web sites to be so high that it closes down public forums."

It's not surprising to some legal experts that YouTube is at the center of the fight. In February, NBC requested the site remove a skit from the television show "Saturday Night Live."

Critics have pointed to this as an example of how YouTube has profited from copyright infringement. A relatively obscure site until that point, it received national attention from the hubbub with NBC. YouTube, however, which quickly took the clip down after NBC protested, points to its handling of the incident and others like it as an example of how the company is going to great pains to make sure copyrights are respected.

"We have been told by many dozens of content owners that we are by far the most cooperative and responsive of the video-sharing sites," Zahavah Levine, YouTube's general counsel, said in an e-mail to CNET

So who's right? For now, YouTube is standing on solid legal ground, according to several legal experts who said that YouTube is protected--under the same federal law that covers other online services such as Craigslist, eBay and Yahoo's GeoCities--from liability for copyright violations its customers may commit.

But intellectual-property attorneys also see areas where YouTube risks butting into the DMCA. For example, the law specifically prohibits a Web site from profiting from copyright material. Recently, ads have begun appearing on YouTube alongside individual video clips.

"They hadn't done this before," said John Stickevers, an intellectual-property attorney at the law firm Bromberg & Sunstein in Boston. "The law states that you can't receive profits directly attributable to the infringing content. I think this would make it much harder for them to make an assertion that they weren't profiting."

Levine discounts this concern because "to date, YouTube has never sold an ad against an individual video."

But there's a larger question of making nice with the customers. YouTube and competitors risk alienating the people who produce some of the best homemade videos, the life blood of video-sharing sites, said Voltz.

Voltz is an attorney, co-creator of a well-known video clip called the "The Diet Coke & Mentos Experiment" and a rather irked man who believes the unauthorized appearance of the Mentos clip on YouTube and other sites cost him money--$28,000, to be exact.

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