YouTube, other websites and the DMCA

Lee Gesmer at MassLawBlog explains why the hullaballoo about YouTube’s exposure to copyright liability is overstated. I agree with his analysis and have lots of other little thoughts about it, and you’d have read them inVariety if a wicked editor hadn’t cut them out before it went to press. At least, the reporter told me it was the editor’s fault. It may really have been that he was just pretending to listen to my answers but couldn’t hear them over the din in the minivan on the way back from the “dinosaur museum.” Either way, I have these opinions. (So do others!)

Now, if I weren’t the general counsel of the Media Bloggers Association (have I mentioned that recently?) I might opine at this point that I actually have a question as to whether Congress intended, in fashioning the safe harbor of the notice-and-takedown provision of the DMCA, to protect the likes of bloggers, or websites such as YouTube, as online service providers. I have thought long and hard about what an OSP is or is not under the statute because I have had the opportunity to argue on behalf of luxury-brands clients, with top legal people from eBay, that eBay isnot an OSP, and may be liable for infringements (eBay not only relies on the DMCA for copyright but also mimicks the DMCA’s procedures for trademark complaints) even if it does seek shelter in the safe harbor. But this is a favorite topic of mine and you may not share that interest or my view of the matter.

In theory, though, it might not benefit my blogger clients for me to utter such heresy, so I will keep that thought to myself, in case anyone stumbles on LIKELIHOOD OF CONFUSION for some reason.

Originally posted 2009-09-10 19:32:21. Republished by Blog Post Promoter