YouTube copyright fight hinges on whether it controls its content, says US court

The first stage in the first copyright infringement suit against video sharing giant YouTube has ended in stalemate. Both sides in the fight applied for an initial judgment against the other, but neither was granted and the case will now proceed further.

Journalist and helicopter pilot Robert Tur filed his suit against YouTube before it was bought by Google, and his is the first copyright case against YouTube to reach the courts.

Tur is the owner of news footage of dramatic events such as a car chase involving OJ Simpson and footage of the 1992 Los Angeles riots. He sued YouTube because users had posted and viewed some of his footage on the site.

He claimed that because it was making money from his footage through web page advertising, YouTube was not entitled to the 'safe harbor' protection of the Digital Millenium Copyright Act (DMCA). YouTube in turn asked the Court to rule that it was entitled to that protection.

Both sides in the case wanted Judge Florence-Marie Cooper of the US District Court for the Central District of California to rule in their favour with a summary judgment. Judge Cooper rejected those applications and the case will proceed to the next stage of the trial.

The crucial issue in both of Judge Cooper's rejections of the applications for summary judgments was the degree of control exerted by YouTube over the content posted by users on its site.

The DMCA allows exemptions from copyright infringement suits to certain digital service providers who are only conduits for information, such as internet service providers.

In order to qualify, a service provider must fulfil a number of conditions. Tur argued that because YouTube failed to establish one of the conditions for qualification for 'safe harbor' protection it should not be allowed that protection.

In particular, Tur said that because YouTube received financial benefit from its use of his material by accepting advertising on the page on which it was displayed, it was not entitled to the exemption.

In delivering her opinion Judge Cooper said that Tur's application must fail because financial benefit is only considered once it is established that the service provider is in control of the offending material.

"As the statute makes clear, a provider's receipt of a financial benefit is only implicated where the provider also has the right and ability to control the infringing activity," said Judge Cooper. "Tur has not presented any evidence to the Court, despite numerous opportunities to do so, that establishes that YouTube had the right and ability to control the allegedly infringing activity."

YouTube had asked Judge Cooper to rule definitively that it was protected by 'safe harbor'. She refused to do that because she said that though Tur had not proved that YouTube was in control of the material, neither had YouTube proved that it was not.

"The 'right and ability to control' infringing activity, as the concept is used in the DMCA, has been held to mean 'something more' than just the ability of a service provider to remove or block access to materials posted on its website or stored in its system," said the Judge. "Rather, the requirement presupposes some antecedent ability to limit or filter copyrighted material."

Judge Cooper refused to rule on the applicability of the exemption to YouTube, though, saying that its processes were not clear enough for such a ruling.

"There is insufficient evidence before the Court concerning the process undertaken by YouTube from the time a user submits a video clip to the point of display on the YouTube website," she ruled. "Thus, there is insufficient evidence from which the Court can determine YouTube's right and ability to control the infringing activity."