Rich Fiscus
9 Sep 2007 19:57
Universal Music Group's legal tactics are under fire again. This time the heat is coming from DivX, Inc., developer of both the DivX MPEG-4 Codec and a viral video service called Stage6.
Apparently following the lead of relative newcomer to the viral video scene, Veoh Networks, DivX is suing Universal after being accused of copyright infringement, but not yet sued. Another striking similarity to the Veoh case is Universal's apparent lack of interest in using the DMCA's mechanism of takedown notices to get videos that supposedly violate copyright removed.
Based on an earlier situation with YouTube, which ended in Universal dropping a copyright violation suit and signing a licensing agreement, one obvious possibility that the ongoing accusations are part of a negotiation strategy using legal action to arrange for better financial terms. However, it's possible that their strategy is simpler than that. As billionaire and internet innovator Mark Cuban noted in a recent interview, the protection offered by DMCA safe harbor provisions may not even apply to viral video websites.
There's no question that so called safe harbor rules weren't designed with viral video, or any other content distribution system, in mind. Their purpose is to shield web hosting providers from being liable for infringement by users of their services. In order to qualify for safe harbor, hosting providers must take action to remove offending content when they receive a DMCA takedown order from a copyright holder. As long as they're responsive to this process, they're shielded from legal action resulting from their customers' infringement.
The problem with applying this to viral video is in determining who the provider is, and who is really responsible when copyrighted works are made available. If, for example, someone were to create a web page hosted by a third party hosting service there would be no question that the hosting service isn't responsible for the content. However, they're not putting it on their own page. They're submitting it to a viral video site, which hosts the videos as part of its service, and not as part of some other party's page.
In other words, viral video sites may have more legal responsibility for content than a hosting service would. If, in the final analysis, these sites are found not to be protected by the safe harbor provisions the result could be a lot of websites shutting down, or at least moving to countries where they're out of reach of U.S. and European prosecuters.
Source: Ars Technica