Volokh on Posting YouTube Videos on Law Blogs
Check out the Law and Propriety of Posting YouTube Links over at the Volokh Conspiracy in response to commenter "Sonia Sturunch's" accusation that the posting of Herbie Hancock's Cantaloupe Island (below) "weakens the philosophical underpinnings of the [Volokh] blog's stated commitment to the rule of law and of the constitution."
UPDATE ON THE VIDEO BELOW FROM COMMENTER CHRIS NEWMAN (WHOSE OWN WEBSITE IS HERE) -- BLUE NOTE IS OWNED BY EMI AND EMI HAS LICENSED ITS MATERIAL TO BE VIEWED ON YOUTUBE. For purposes of this post, we'll ignore the fact that this hot issue is no issue at all becaue it could be an issue and one lawyers like us like to think about.
We're fans of the rule of law and the United States Constitution here and over at the Settle It Now Negotiation Blog as well. It certainly never occurred to us that posting a YouTube video on our blogs posed a threat to either the Constitution or the Rule of Law. Frankly, when we started blogging, we didn't think anyone would take any notice at all.
Now that our readership is growing, we have to admit we've had a low level of worry about the YouTube links.
Mostly we've been thinking that the Rule of Law is experiencing some pretty rough growing pains in response to the re-ordering being done to the business and culture of art, music, literature and the like. We don't know where it's going but it seems to us that it's giving more power to the artists and less to the producers and distributors. We have nothing against making an honest buck from production and distribution. But being really serious fans of art and artists, we've been thinking it's a good thing that the means of production and distribution have been more or less put back in the hands of the people who sing and play and draw and write and dance.
When the substance and application of the law is difficult because the culture it was devised for and applied to is radically changing, that's the best time to be a lawyer and legal scholar because you get back to first prnciples again.
We like what the Volokh Conspiracy has to say about posting YouTube videos because it seems common sensical and intellectually sound way for the law to wrap itself around the new culture of the internet.
Sorry for the long wind-up. The excerpt below and the link to the entire post is above.
First, let's examine the question of substantive copyright law. Is it copyright infringement to provide a link to a file hosted on YouTube that is likely an unauthorized copy, and to invite readers to view the file?
. . . [M]y sense of the answer is "probably not."
The primary issue is liability under the principles of contributory infringement. As the Supreme Court explained in Grokster, "One infringes contributorily by intentionally inducing or encouraging direct infringement." Contributory infringement generally requires (1) knowledge of the infringing activity and (2) a material contribution to the infringement.
The law here is really murky, in part because there are so few cases (DMCA notice & takedown letters usually address the problem before a lawsuit is filed), but I think I'm probably not liable.
First, I don't think a link in this context amounts to a material contribution to the infringement. The file I linked to is very widely and publicly known. If you google the song name, the file is the second link that appears (right after the Wikipedia entry). The clip has been viewed over 125,000 times in the last year. Further, YouTube is one of the most visited sites on the Internet, and everyone knows that you can get music clips there: just go to youtube.com and search for "cantaloupe island" and this clip is the first thing that pops up.
Given that, I don't think my linking to the file is a "material" contribution to any infringement.
Yes, my link singled out the widely known clip for its musical excellence; but I see that as pointing out which of the widely-known clips on YouTube is musically strong, not doing the work of locating and pointing out the infringing clip. Given that, I don't think linking to it materially contributed to any infringement: a YouTube link in this context strikes me as more like the link in Perfect 10 v. Google, Inc., 416 F.Supp.2d 828 (C.D.Cal. 2006) than the link in Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999).
Second, I'm not sure I have the knowledge required for contributory infringement. The cases here are super-murky, but they seem to suggest that "knowledge" is not satisfied by a decent likelihood, but rather appears to require a pretty bright "red flag" showing that it is essentially certain (in light of the uncertainties of ownership, fair use, and the like) that conduct is leading to unlawfully infringing activity. . . .
(emphasis mine)
I'm going to follow the discussion of this issue over at Volokh and invite our readers to weigh in or there. It's law-making time. Join the fun!
