The UNconstitutionality of Mandatory Mediations

One of the most valued aspects of mediation is the voluntariness of the process. Generally, mediation is a process that provides parties with an opportunity to come up with their own resolution to a dispute that all of the parties agree upon. Mediation is a type of Alternative Dispute Resolution. What sets mediation apart from other common alternative dispute resolution forums is its emphasis on self-determination and voluntariness.
Mediation is a very attractive option for parties who would rather not engage in the traditional adversarial process of litigation. Throughout the last decade, mediations in Family Courts have increased most significantly. According to the National Center for State Courts, over 200 court-connected mediation programs exist in the United States.[1] In civil cases, the federal government and the states employ mediation in the following types of disputes: personal injury, construction, labor, commercial, environmental, complex multi-party anti-trust actions, and RICO claims.[2] Thirty-eight states and the District of Columbia utilize mediation in custody and visitation disputes.
Remarkably, thirty-three states have either statutes or similarly authoritative court rules that mandate mediation in contested custody and visitation cases.[3] I find that to be particularly troubling because the backbone of the mediation process is its voluntariness and its emphasis on self-determination. In my opinion, once these states legislatively strip the process of its most defining elements, all that remains is the name mediation, the actual substance of the process, however, is destroyed.
According to the Civil Court of the City of New York, “mediation is a free, voluntary, and confidential process that allows parties to create their own solutions to the problems that brought them before the court.”[4] Statutes that impose mandatory mediations drastically change the entire dynamic of the mediation process and its attractiveness to prospective participants. But, most importantly, these statutes fail to take into account the requirements of the Due Process Clause of the United States Constitution.
The Fourteenth Amendment of the United States Constitution provides that "[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law."[5] Denying citizens access to the court system by mandating mediation violates the Due Process Clause of the 14th Amendment. This paper will focus on the Constitutionality of mandatory mediations under the 14th Amendment’s Due Process Clause.
Problems with Mandatory Mediation
There are numerous benefits to mediation, however, when the process is mandated, rather than voluntarily chosen, the benefits can turn into potential dangers. In most cases, the benefits of mediation are only attainable to parties who choose to avail themselves to the advantages. If legislatures or courts misuse mediation by making it mandatory, it ceases to be a useful tool. Taking that a step further, when courts or legislatures impose mediation on parties who want to resolve their dispute in court, mediation can act as a bar to the Constitutional guarantees of Due Process.
One fundamental principal of mediation is that parties who utilize the process should have roughly equal bargaining power. When there has been instances of abuse between parties involved in a mediation, the bargaining power of the abused party is most likely substantially diminished. Parties with a history of abuse should not be advised or even permitted to enter mediation.
When a court imposes mediation, unequal bargaining power may affect the division of property. An abused party may be fearful to assert his/her rights because, as the Power and Control Perspective Wheel suggests, the abuser may have exerted economic abuse, coercion and threats, or intimidation.[6] This can be a very serious problem, especially in custody and visitation, PINS, and divorce mediations.
The mediation process has numerous upsides and it is beneficial to a wide range of parties involved in almost all kinds of disputes. It is very important, however, for both legislators and courts to understand that mediation is not the be-all-end-all of dispute resolution. It is a highly effective process when it is used and facilitated appropriately—that is, when the parties voluntarily engage in it. By imposing mediations, legislators are attempting to stretch the benefits of mediation to cover an unlimited range of parties and cases. Mediation does not work when its fundamental principle, voluntary engagement, is disrespected and abused. Legislators and courts need to understand that good things are not always good all of the time.
To address the problem of abuse and unequal bargaining power, courts must devise a screening process that is designed to detect instances of abuse between parties. Before a court sends parties to mediation, it is essential that the court implement its screening process to ensure that mediation is an appropriate forum for dispute resolution. If parties are not screened prior to entering into mediation, the mediation loses its effectiveness and becomes hazardous to the participants. Mediation is not the answer for everyone. It is a useful tool for certain parties involved in certain disputes. However, when courts and legislatures impose mediation on parties without taking steps to ensure its appropriateness in a particular setting, they are abusing the process and potentially violating the Constitutional rights of the parties involved.

Statutes Requiring Mediation as a Prerequisite to a Judicial Hearing

The Maine legislature passed a statute that gives courts the power to “refer the parties to mediation on any issue.”[7] If the parties do not reach an agreement through mediation, "the court must determine that the parties made a good faith effort to mediate the issue before proceeding with a hearing."[8] If the court finds that the parties did not make a good faith effort to mediate, "the court may order the parties to submit to mediation, may dismiss the action or a part of the action, may render a decision or judgment by default, may assess attorney's fees and costs or may impose any other sanction that is appropriate in the circumstances."
The Maine statute is problematic because it abuses the mediation process and it does not comport with Due Process requirements. First, parties are less likely to attain the goals of mediation when their participation is not voluntary. The Maine statute eliminates all of the voluntary aspects of mediation. Second, the statute unjustifiably restricts access to Maine courts. To justify the statute, Maine would have to assert a state interest that outweighs a party’s right to access the courts. Maine’s interest in requiring mediation is most likely one of alleviating the pressure on its dockets by encouraging, and perhaps forcing parties to devise their own resolutions to disputes through mediation. However, the risk of depriving a person of the right to pursue a judicial remedy is great and, in my opinion, far exceeds Maine’s presumed interest.
Under this statute, an abused party might mediate and agree to a resolution in an effort to avoid further confrontation with the abuser, especially if a judge returned the parties to mediation after finding that the parties failed to mediate in good faith. If an abused party is required to mediate, that party is at a major disadvantage and the mediator may not be able to level the resulting imbalance. Maine’s statute does not consider prior instances of abuse when empowering courts to order parties to mediation. When an abused party agrees to a mediated decision because of his/her fear of continuing negotiations with the abuser, the statute that required mediation as a prerequisite to a judicial hearing, effectively denied, not merely delayed, the abused party’s access to the court. Under these circumstances, the Maine statute violates the Due Process clause.
There are certain situations when mediation is entirely inappropriate and also, in my opinion, unconstitutional. These situations are now commonplace in Maine. They arise when parties are denied a judicial hearing and instead sent to mediation without a guarantee that the they will ever be allowed to bring their case back to court if an agreement is not reached during the mediation. The citizens of Maine, their courts and legislators not excluded, have a skewed understanding of mediation. Mediation, as they know it, is not even mediation at all. Mediation has several different definitions, but they all have at least two fundamental elements in common: (1) it is voluntary, and (2) it requires self-determination to be successful. In Maine, mediation is something completely different. There is no aspect of voluntariness and the issues that parties must determine are not even germane to the issues presented in their case. Instead of deciding whether a proposed settlement is acceptable to them personally, they have to think about the legal ramifications of declining a settlement offer from the other party. If a judge rules that the party failed to mediate in good faith based on the party’s refusal to accept a settlement offer, the Maine statute empowers the judge to dismiss the case entirely. Parties involved in mediations should not be forced to balance the risk of having their cases dismissed against their desire for a judicial remedy.

Mediation Should Only be Used by Parties Who Voluntarily Choose to Mediate.

Due Process concerns arise when a court imposes mediation because it impedes upon parties’ liberty interests. By providing court-annexed mediation, the court makes an attempt to offer parties a potentially more satisfactory means of resolving their dispute, without intruding upon the parties' due process rights. If the parties are willing, courts can and should provide for court-annexed mediation services to assist the parties in the divorce proceeding. Voluntary court-annexed mediation may reduce both the size of dockets and costs.
State legislatures should repeal mandatory mediation statutes and statutes that grant courts discretionary powers regarding mediation. When a party's right to a trial is taken away, the party's right to due process is violated. To avoid potential constitutional violations, courts and statutes should take the approach of informing the parties of their right to mediate without mandating that option.

Supporting Case Law:

A Texas trial judge ordered parties in a negligence action to mediate their claims. The parties had no interest in mediation and challenged the judges order. The judge’s order required the parties to negotiate in good faith a resolution of their claims through mediation. The parties sought mandamus relief from the Texas Court of Appeals.[9]
The Court of Appeals conditionally granted the petition, finding that respondent's order was void insofar as it directed the parties to negotiate in good faith a resolution of their dispute through mediation, despite their objections. The court found that a trial court was authorized to refer a dispute to an alternative dispute resolution on its own motion, however, if a party objected, and there was a reasonable basis for the objection, the trial court may not order the parties to mediate.[10] The court found that the trial court's order requiring the parties to negotiate in good faith and attempt to reach a settlement did not comport with the legislative intent to compel referral, but not resolution.

Conclusion:
To ensure that statutes and courts do not run afoul of the fundamental right to due process, mediation can never be mandatory. It must always be voluntary, otherwise it is a contradiction in terms. The very premise of mediation is its voluntary nature, which in theory makes the parties more willing to reach an agreement. The traditional adversarial system, with its mandate that parties choose a position and stick to it, is not necessarily conducive to reaching an agreement, particularly for cases in which custody and visitation are at issue. Mediation is an excellent option when it is truly an option. When a court or statute mandates mediation, however, a cornerstone of its foundation is removed, causing serious structural flaws.
[1] See, Peter Salem & Ann L. Milne, Making Mediation Work in a Domestic Violence Case, 17 FAM. ADVOC. 34, 34 (1995).
[2] See, 6 Wm. & Mary Bill of Rts. J. 277, at 278.
[3] See, Salem & Milne, supra note 1, at 34.
[4] See, http://nycourts.gov/courts/nyc/civil/pdfs/mediation.pdf
[5] U.S. CONST. amend. XIV.
[6] See, http://www.opdv.state.ny.us/about_dv/wheeltext.html
[7] ME. REV. STAT. ANN. tit. 19-A, 251(1)
[8] Id. at 251(4).
[9] Decker v. Lindsay, 824 S.W.2d 247 (Tex. App. 1992)
[10] Id. at 257

YouTube's Fate After Pending Infringement Suits

Summary:

YouTube has recently been sued for copyright infringement. YouTube’s liability is dependent upon whether YouTube meets the requirements of the DMCA safe harbor for service providers under 17 U.S.C.A. §512(c). This paper examines how YouTube will fare under the different theories of copyright infringement and whether the DMCA safe harbor would be available to YouTube if they were found liable in the copyright infringement suits.

What Is YouTube?

YouTube started out as a personal video sharing service. It has transformed into a worldwide entertainment destination. The transformation resulted, in part, from the website’s ease of use. After a user uploads and video and describes what it is, YouTube encodes the video, supplies a player, and provides bandwidth and server space free of charge to the user. When the video is posted to the YouTube website, YouTube provides the video with a URL, which can be passed on to other users so that they can locate the video. Once someone visits the URL, that person can browse the site for additional content. Users can either post their own content on the YouTube website or embed previously posted videos onto other websites.
YouTube’s content is as varied as its users. There are some limits on what content is acceptable for posting. Unlawful, obscene, pornographic or racist content is impermissible, as well as material that is copyrighted, protected by trade secrets or otherwise subject to third-party proprietary rights without permission of the rightful owner.[1] In addition, YouTube implements a time restriction of 10-mintues per video. This distinguishes YouTube from other services that swap entire television shows and movies.
YouTube contains more traditional media content, like TV clips and music videos. However, the website also hosts a large amount of user-created content, including animations, amateur lip-synched songs, Hollywood trailer mash-ups and other remixed material, family videos and seemingly anything that can be recorded using a camcorder. The homepage includes ten daily featured videos, as well as one sponsored video.

Terms of Use and Copyright Info.

The User Submissions section of the “Terms of Use” implicates the copyright issues discussed later in this paper, so a brief description of the pertinent clauses will inform that examination. A user is solely responsible for any User Submission posted and affirms that they own or have the necessary rights to use and authorize YouTube to use content that may be protected by any proprietary rights. All ownership remains with the user submitting the video, but the user grants YouTube a “non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform User Submissions in connection with the YouTube Website and YouTube’s business.”[2] Additionally, YouTube will remove any content that infringes copyright or does not comply with the terms, after proper notification[3] of infringement is provided or at their discretion, without prior notice to the user and at their sole discretion.[4] If a User Submission is removed from YouTube, the user can elect to send a counter notice. Finally, the company details their repeat infringer policy: “YouTube will also terminate a User's access to its Website, if they are determined to be a repeat infringer. A repeat infringer is a User who has been notified of infringing activity more than twice and/or has had a User Submission removed from the Website more than twice.”[5]

YouTube’s Popularity and Future Potential Uses In The Media Industry.

While YouTube makes some media companies cringe, others have done and are trying to do everything possible to capitalize on this new media outlet that has basically taken the place of traditional radio for young people. Hollywood Records is one company that has embraced YouTube’s unmatched ability to market new musical talents. They are the first record label company to sign an artist who became popular by slowly building a YouTube audience. Her name is Marié Digby. Ms. Digby's simple, homemade music videos of her performing popular songs have been viewed more than 2.3 million times on YouTube. Her acoustic-guitar rendition of the R&B hit "Umbrella" has been featured on MTV's program "The Hills" and is played regularly on radio stations in Los Angeles.
While this represents one example of how YouTube has been utilized to the benefit of media companies, the vast majority of similar companies are very angered by YouTube’s lack of respect for copyrights. The National Music Publishers' Association, just joined a major lawsuit against Youtube out of concern that many songwriters were not receiving proper compensation when their music appeared on YouTube videos.
Ms. Digby is now being hailed as the “lucky nobody.” However, that is not exactly an accurate description. As it turns out, Hollywood Records signed Ms. Digby in 2005, 18 months before she became a YouTube phenomenon. To promote her album, the record company bought her a digital home recording device and came up with a list of songs for Ms. Digby to record herself covering. Ms. Digby kept the fact that she had already been signed by a record company to herself. The truth about Ms. Digby was not revealed until October of 2007. Her new record is set to hit the stores in the coming months. This is a brilliant use of YouTube’s popularity and it represents a new way of marketing that is legal and effective.

Google’s Purchase of YouTube.

Due to YouTube’s coveted superior position in the video sharing industry and its expected profitability and growth, Google purchased YouTube in October 2006 for $1.65 billion in stock.[6] On the same day that Google made this colossal purchase, YouTube announced that it struck partnership deals with media moguls CBS, Universal Music Group, and Sony BMI.[7] YouTube figured that it alleviated many infringement concerns with its sale to Google and its partnership with these media giants, which it did, at least for the time being. Recently, however, some media giants, even those with partnership deals with YouTube, have announced plans to start their own video sharing websites.[8] Although NBC Universal and News Corporation, both involved in a joint venture, claim that their motive for creating their own site is advertising revenue,[9] others claim that the proposed site is directly related to the media giant’s displeasure with the infringement that takes place on YouTube.[10]

The Lawsuits.

To date, YouTube is in the process of defending two major lawsuits for copyright infringement. The first suit was initiated by an unlikely plaintiff named Robert Tur. Tur is not connected with any media companies; he is just a vigorous protector of his privately owned copyrighted videos.[11] Tur sued YouTube in the U.S. District Court for Central California in July 2006.[12] In his complaint, Tur alleges video copyright infringement of his L.A. riots footage because of its posting on YouTube. Tur’s move came as a big surprise to the industry because many of the major media giants were expected to file lawsuits first.[13]
The second lawsuit filed against YouTube is more along the lines of what the industry expected. Viacom, the owner of MTV, Nickelodeon, and Comedy Central, filed suit against YouTube on March 13, 2007, in the U.S. District Court for the Southern District of New York.[14] Viacom seeks damages for copyright infringement totaling $1 billion, which is almost the amount that Google paid to purchase YouTube.

The Digital Millennium Copyright Act (DMCA).

In 1998, Congress amended the Copyright Act with the Digital Millennium Copyright Act (DMCA). The purpose for replacing the Copyright Act with the DMCA was to encourage the continued growth of the internet by offering more protection to Internet Service Providers (ISPs) from copyright infringement litigation.[15] The drafters of the DMCA sought to strike a balance between protecting the rights of copyright holders and promoting internet development.[16]
The key ingredient that Congress hoped would facilitate this balanced legislation came in the form of “Safe Harbor” provisions that protect ISPs from monetary damages and limited injunctive relief if the ISP’s conduct falls within the statutory boundaries.[17] Although the DMCA offers the safe harbors, which are added protections for the ISPs, the legislation also preserved the traditional protections that copyright holders had for the protected works.[18]
Safe harbor protections are broken down into four categories[19]: (1) conduit,[20] (2) system caching,[21] (3) system storage,[22] and (4) information location tools.[23] If an ISP does not fall within one of these four categories, it will not receive the safe harbor protection. For YouTube to reap the benefits of the safe harbor protection, it will have to establish itself within the second category, system storage. I will analyze the system storage category by itself.

Safe Harbor Protection For Internet Service Providers.

YouTube would qualify for safe harbor protection under the system storage category if:
(1) YouTube can prove that it did not have actual knowledge that the material or an activity using the material on the system or network is infringing.[24] In the absence of actual knowledge, YouTube must also be able to prove that is was never aware of any facts or circumstances that made their infringing activity apparent.[25] If YouTube did have such knowledge or awareness, it must be proven that YouTube acted expeditiously to remove, or cut off access to, the infringing material.[26]
(2) YouTube can prove that it did not, or does not, receive a financial benefit that is directly attributable to the infringing activity.[27] This provision is only applicable in a case in which the service provider has the right and ability to control the infringing activity.[28] From a pure strategic standpoint, YouTube would probably try to prove that it did not have the ability to control any infringing activity that occurs on its site.
(3) YouTube can prove, if it ever obtained notification of claimed copyright infringement, that upon obtaining such notification, it responded expeditiously to remove, or disable access to, the material that was claimed to be infringing or to be the subject of infringing activity.[29] The plaintiffs in this lawsuit have already alleged that they gave YouTube notification of infringing material that was posted on the YouTube site.[30] It does not appear that YouTube will contest the fact that it received notification.[31] Instead, YouTube will most likely focus its efforts on proving that it acted expeditiously upon receiving such notification.
If YouTube does not qualify as an internet service provider or does not fall within the protection of a safe harbor, it will be held liable for monetary damages or injunctive relief, or both.

YouTube’s Motion for Partial Summary Judgment In the Robert Tur Lawsuit.

In response to the lawsuit filed by Robert Tur, YouTube filed a motion for partial summary judgment in an attempt to obtain a fast ruling from the court that it qualified for safe harbor protection.[32] YouTube purported that it had a definitive ability to satisfy all of the requirements of the statutory scheme. As the court noted, YouTube’s eligibility for safe harbor protection depends on whether YouTube can prove that it satisfies certain threshold elements common to all of the safe harbor provisions, as well as the specific elements that I described above.[33] Before a court reaches the analysis of the elements I listed above, it must first determine that the internet service provider meets the threshold conditions set forth in § 512(i) of the D.M.C.A..
Accordingly, YouTube’s first obligation was to prove that it satisfied the following threshold requirements:
(1) The D.M.C.A. requires “accommodation of technology” from the service provider to qualify for safe harbor protection.[34] Basically, this means that YouTube must prove that it implemented a policy that removes repeat offenders.[35]
(2) That YouTube accommodates and does not interfere with standard technical measures that copyright owners use to protect their works.[36]
In ruling on YouTube’s motion, the court did not take issue with either of these requirements. Instead, the court’s ruling focused on YouTube’s ability to prove that it did not have the ability to exercise control over the infringing activity on its site.[37]
The right and ability to control infringing activity, as the concept is used in the DMCA, has been held to mean more than just the ability of an internet service provider to remove or cut off access to materials posted on its website or stored in its system.[38] Rather, the requirement applies to internet service providers that have the ability to limit or filter copyrighted material.[39]
The court reasoned that there was insufficient evidence about YouTube’s knowledge and ability to exercise control over the infringing activity on its site. It found that YouTube exerts a significant amount of maintenance and management over its website, but that the nature and extent of that management was unclear. In its brief, YouTube contended that it was only able to remove clips from its site once they have been flagged as infringing, but that its system did not have the technical capabilities necessary to detect and prescreen allegedly infringing videos.[40] From the court’s perspective, YouTube did not provide sufficient evidence concerning the process that it undertakes from the time a user submits a video clip to the point of display on the YouTube website.[41] The court held that the lack of evidence prevented it from determining YouTube’s right and ability to control the infringing activity, and thus, denied YouTube’s motion for partial summary judgment.[42]
The court’s holding does not mean that YouTube will not qualify for safe harbor protection at trial. It only means that there are triable issues of material fact concerning YouTube’s eligibility for safe harbor protection. The court sort of hinted that one of the main issues at trial will be whether YouTube has the right and ability to control the infringing activities on its site. The court was unable to decide that issues as a matter of law, so it will be a factual issue for the jury to determine.
First, I will analyze some of the major copyright infringement cases that will likely have a substantial impact on the copyright suits against YouTube. However, because I think that the success of YouTube’s defense will turn on the issue suggested by the United States District Court For The Central District Of California, that is, the right and ability of YouTube to control the infringing activity on its site.

Case Law Relating to Copyright Infringement Under the DMCA.

The following well-known cases may shed some light on how the courts will interpret internet copyright infringement in the cases against YouTube under the DMCA.
One of the most influential cases concerning copyright infringement, and most significantly, the fair use doctrine, is Sony Corp. of America v. Universal City Studios, Inc.[43] In this case, copyright owners sued the manufacturer of Betamax video recording equipment under the theory of contributory infringement.[44] The plaintiff, Universal Studios, Inc., alleged that because Betamax consumers used Sony’s recorders to record plaintiff’s copyrighted works, that Sony was liable for the copyright infringement allegedly committed by those consumers in violation of the Copyright Act.[45] The district court held in favor of Sony, but the plaintiff appealed and the appellate court reversed the district court’s finding and held that Sony was liable for contributory infringement.[46]
The case then went up to the United State Supreme Court, which held that Sony demonstrated a significant likelihood that substantial numbers of copyright holders that licensed works for broadcast on free television would not object to having such broadcasts recorded for future viewing by private viewers. Based on that reality, the court found that the recorders were therefore capable of substantial non-infringing uses and that Sony’s sale of the recorders to the general public did not constitute copyright infringement.[47] Universal was unable to sufficiently establish that consumers recording television programs caused any financial harm, which also let the court to find that Sony was not liable for contributory infringement.[48]
In A&M Records, Inc. v. Napster, Inc., plaintiffs, who were engaged in the commercial recording, distribution, and sale of copyrighted music and sound recordings, alleged that defendant internet software provider was a contributory and vicarious copyright infringer based on its design and operation of a peer-to-peer file sharing system.[49] The system permitted the transmission and retention of sound recordings employing digital technology, through the use of which the provider’s users were allegedly engaging in direct violation of plaintiffs’ copyrights.[50] The United States District Court for the Northern District of California granted plaintiffs’ motion for a preliminary injunction, which enjoined the defendant, Napster, Inc., from engaging in or facilitating others in copying, downloading, uploading, transmitting, or distributing plaintiffs’ copyrighted music and sound recordings without express permission from the rights owner.[51] The defendant appealed, raising multiple arguments concerning contributory and vicarious copyright infringement.[52]
The United States Court of Appeals for the Ninth Circuit struck a significant blow to peer-to-peer file swapping when it upheld the preliminary injunction against Napster, which effectively shut down Napster’s service.[53] The Ninth Circuit rejected all of Napster’s defenses to the charge that its system infringed the copyrights owned by the plaintiff, including Napster’s claims of fair use, space-shifting, sampling, lack of knowledge of infringement, lack of financial benefit, and statutory safe harbor protections. The holding in this case established that vicarious liability may be imposed when a service provider has the right and ability to supervise an infringing activity, and receives a direct financial benefit from the infringing activity.[54] The court determined that Napster had the right and the ability, using available technology, to prevent infringing conduct or activities from occurring on its site.[55] The court also determined that Napster received more revenue based on the number of its users.[56] This combination demonstrated sufficient evidence of vicarious liability.[57] As a result of this holding, and the decisions in ensuing cases, including MGM Studios, Inc. v. Grokster, Ltd.,[58] providers who facilitate free music through the use of peer-to-peer sharing technology do so at the risk of secondary liability for copyright infringement, which, in turn, has led to the rise of pay services to obtain music online.
The most recent and most factually similar case is MGM Studios, Inc. v. Grokster, Ltd.[59] In this case, the plaintiffs, movie studios, recording companies, songwriters and music publishers, sued defendants, two companies that distributed free software products that allowed computer users to share electronic files through peer-to-peer networks.[60] The site was set up so that the users communicate directly with each other, rather than through central servers. The movie studios and recording companies, as well as the songwriters and music publishers, all filed separate suits against the defendants but they were all consolidated into this one case.[61] The plaintiffs alleged that defendants had knowingly and intentionally distributed their software to enable users to infringe copyrighted works in violation of the Digital Millennium Copyright Act.[62] The plaintiffs sought monetary damages and an injunction.[63]
Both the plaintiffs and the defendants moved for summary judgment. The United States District Court for the Central District of California limited its consideration to the issue of defendants’ liability for distributing current, rather than past, versions of their software, but then granted defendants’ motion for summary judgment as to any liability arising from the distribution of their software.[64] Plaintiffs appealed and the United States Court of Appeals for the Ninth Circuit affirmed, however, the United States Supreme Court vacated the grant of defendants’ motion for summary judgment and remanded for further proceedings.[65]
The decision in this case has two notable components. First, the U.S. Supreme Court stated that the rule set forth in Sony did not limit secondary liability beyond the circumstances to which the case applied. Sony only barred secondary liability based on presuming or imputing intent to cause infringement solely from the design or distribution of a product that is capable of substantial lawful use.[66] Second, the court affirmed that infringement may be established through the use of fault-based liability, which derived from the common law. The court then applied the common law concept of inducement to the context of copyright infringement.[67]
Among the numerous examples of inducement given, the court placed special emphasis on advertising an infringing use or even going further by instructing users how to engage in an infringing use. Taken as a whole, the case provides for liability under broader circumstances than those permitted under previous cases. And I think it is important to note that the court strongly emphasized the defendants’ advertising and marketing strategies, and used both of them against the defendants, which was a significant factor for the court in reaching its decision.

The Grokster Theory of Inducement.

The Grokster theory of inducement is an additional theory secondary liability. “[O]ne who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”[68] In cases where inducement to infringe exists, the Sony substantial non-infringing use standard is trumped and, therefore, does not apply.[69] The Grokster court found three notable factors that proved Grokster had the unlawful intent to induce copyright infringement:
(1) The service was aimed to satisfy a known demand for infringement;
(2) The service did not develop tools to either filter, lessen, or flat out eliminate infringement activities occurring on the site; and
(3) The commercial success and profitability of the site/service was dependent upon a high volume of use, which is infringing.[70]
These three factors are specifically relevant to YouTube’s defense in Robert Tur’s copyright infringement lawsuit. Tur first claims that YouTube intended to satisfy a previously known source of demand for infringement activity, more specifically, the market comprised of former Grokster video “sharers.”[71] Some commentators see this allegation as an important factor for determining liability. “If discovery in the Tur case turns up evidence that YouTube was banking on infringing material to increase viewership, it will likely fall prey to Grokster’s demise.”[72] If discovery uncovers some of YouTube’s internal documents that suggest an unlawful intent to capitalize on the recent demand for infringing activities, that would be absolutely critical to Tur’s success and YouTube’s failure.
It is unlikely, however, that such damaging documents will ever surface to bust a giant hole through YouTube’s defense. YouTube has never publicly claimed that its service is intended to be a replacement for a file sharing service that was previously shut down. It does not appear that YouTube will be the next Grokster. YouTube’s current message to its users states the following: “YouTube is a place for people to engage in new ways with video by sharing, commenting on, and viewing videos. YouTube originally started as a personal video sharing service, and has grown into an entertainment destination with people watching more than 100 million videos on the site daily. Our users determine what is popular on the site, and can unleash their creativity and broadcast their talents to a global audience.”[73]
Next, Tur alleges that YouTube has never implemented nor developed any substantial filtering tools or any other mechanisms designed to limit any infringing activity that occurs on its site. I do not know whether that was true at the time that Tur filed his complaint, however, fairly recently, Google released YouTube’s much-anticipated video filtering system.[74] If the system is effective, it would allow media companies to prevent their clips from being uploaded to YouTube without their permission.[75] Google said that it has been testing the system for several months and called the tests “promising,” but would not say how effective the system was.[76] Whether the system is currently functioning at its full intended capacity is not necessarily all that important. The importance of this system is that YouTube now has proof that it has developed and implemented a system designed to limit infringing activity from occurring on its site. The statute does not require a full-proof prevention system. Therefore, for the purposes of answering Tur’s allegation, the system is perfect.
Finally, Tur claims that YouTube has been pursuing a “model which rewards high-volume use, including that of infringing uses, with greater advertising revenue, as revenue is correlated with usage.”[77] The thrust of this allegation turns on a factual question that will likely unravel during discovery. I think that it is very unlikely that Tur will be able to factually verify YouTube’s intent to satisfy a known source of demand for illegally shared copyrighted videos. Therefore, I also think that it is unlikely that YouTube will be found liable under a theory of inducement.

ANALYSIS:

What Is the YouTube Business Model?

YouTube’s business model sets it apart from any other internet service provider’s model. After reviewing YouTube’s model, it is clear that YouTube is one-of-a-kind. YouTube’s business model is perhaps the single most crucial document to YouTube’s legal position, and will probably be the reason why YouTube will not be found liable in either of the infringement suits. There are three foundational elements that embody YouTube’s model: (1) efforts towards compliance with the DMCA; (2) partnerships with major media giants; and (3) large numbers of visitors with a potential for profitable relationships.[78]

Comparison With Past Internet Infringing Sites.

YouTube is fundamentally different from other internet service providers that have been found liable for copyright infringement, most notably, Napster and Grokster. This fundamental difference puts YouTube in a much better position regarding its possibility of liability for copyright infringement based on past cases. Because YouTube is so fundamentally different, it would be inappropriate for a court to apply the rationale of the Napster or Grokster courts to YouTube’s case.[79] Both Napster and Grokster conducted their services with total disregard to copyright laws and copyright owners. In contrast, YouTube’s focus on partnership and licensing deals suggests its desire to work cohesively with copyright owners.[80]
As a storage system provider, YouTube could be held liable for copyright infringement if it is proven that it had actual knowledge of infringement or if the infringement was apparent under § 512(c)(1)(A). YouTube’s conduct clearly shows that it meets this requirement because it always removes infringing videos upon receiving notification of the infringing activity or material.[81] YouTube also posts warnings against engaging in copyright infringement to all of its users who upload videos on the site.[82] The warning reads as follows: "[r]espect copyright. Only upload videos that you made or that you have obtained the rights to use. This means don't upload videos you didn't make, or use content in your videos that someone else owns the copyright to without their permission."[83] These warnings are given in accordance with § 512(i). In addition to the protective guidelines found in YouTube’s model, I mentioned earlier that YouTube recently released a video-filtering system that has the potential eliminate all potential infringement actions. The system is still in the fairly early stages of its development. But when it is fully functioning at its desired efficiency, the system is expected to act as a full-proof prevention system that would allow media companies that own copyrights to directly choose whether to accept or reject the uploading of their copyrighted works.[84] While it is very apparent that YouTube is working diligently to put an end to infringing activity on its site, its new system will only be available to major media companies during the beginning stages of its implementation.[85] Once the system becomes more manageable and dependable, it is likely that YouTube will also make the system available to independent copyright holders, like Robert Tur.[86] YouTube has not set a timetable for its initial release or its future release.[87] Although the system has not reached that level of effectiveness yet, the fact that YouTube’s efforts are being put towards achieving such a system speaks volumes about YouTube’s respect for the copyright laws and for all copyright owners.

Conclusion.

YouTube has only been around for roughly one year and already people from all walks of life are catching on to the limitless potential of YouTube. For as long as I have been alive, presidential campaigns consisted of the same kind of overly broad discussions about overly general topics that leave voters overly confused about who and what they are really voting for when they pick a candidate. YouTube has single handedly changed the way that campaigns are run and has added real substance to the process as a whole. During debates, candidates are no longer asked the watered-down questions posed by debate moderators. Instead, candidates are asked real questions from concerned voters via YouTube. For the first time ever, American citizens get to hear the candidates’ answers to the questions that they want to ask. All you have to do is upload your question to YouTube and submit it to the candidates during a live, real-time debate. Through the benefits of YouTube, not only can our country learn about each candidate on a much more personal and authentic level, but I highly suspect that when the elections come around in 2008, national voting statistics will rise to unprecedented levels, by unprecedented percentages.
This is just one example of how YouTube can be utilized to benefit the public at large. The potential uses and benefits from YouTube, at this early stage of its existence, are unimaginable. However, as the saying goes, nothing in life is free. Our society and our courts must be willing to pay the relatively small cost to allow YouTube’s benefits to flourish. These costs may come in the form of slightly less protective copyright laws or more flexible approaches to dealing with infringing activity. Whatever the costs may be, I think it is clear that the advantages YouTube provides to copyright holders and the public far outweigh the disadvantages.
A cursory inspection reveals that the YouTube site obtains infringing material. However, YouTube’s business model is unlike the failed examples of previous internet service innovations like Napster and Grokster. YouTube is different because it employs an improved distribution model and operational safeguards and copyright-protecting systems designed to eliminate or drastically reduce infringing activities from occurring on its site. Furthermore, YouTube is overly sensitive to the concerns of copyright holders and is amiable to cooperation. I think that YouTube’s chances of successfully defending the Tur and Viacom lawsuits are very high. I think YouTube will qualify for the DMCA’s safe harbor protection. Accordingly, YouTube will be immune from liability for monetary damages and injunctive or equitable relief.


[1] The exact limitations, as found in YouTube’s Terms of Use, User Submissions: users will not “(i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant YouTube all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage YouTube or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business: (v) impersonate another person.” Terms of Service, at http://www.youtube.com/t/terms.
[2] Id. at Section 5(b).
[3] Section 5(D), Terms of Service provides elements of proper notification (can also be found in Copyright Info, supra note 27). The elements needed for proper notification follow the requirements provided in 17 U.S.C.A. 512(c)(3) and provides a designated Copyright Agent. Content holders have used this policy to remove their copyrighted materials from YouTube. For example, NBC owned “Saturday Night Live” skits and an American Airlines in-house training video have both been removed after a proper notification was received by YouTube.
[4] “YouTube does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and YouTube will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another's intellectual property rights. YouTube reserves the right to remove Content and User Submissions without prior notice…YouTube also reserves the right to decide whether Content or a User Submission is appropriate and complies with these Terms of Service for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material, or excessive length. YouTube may remove such User Submissions and/or terminate a User's access for uploading such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion.” Section 5(C),
[5] Section 5(c). Terms of Service.
[6] See Chris Gaither & Dawn C. Chmielewski, Google Bets Big on Videos; The $ 1.65 Billion Deal for Upstart YouTube Allows the Search Giant to Expand in a Hot Sector, L.A. TIMES, Oct. 10, 2006, at A1 [hereinafter Gaither].
[7] See id.; see also LAWRENCE LESSIG, FREE CULTURE: HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL CREATIVITY 162 (Penguin Press) (2004) [hereinafter LESSIG, FREE CULTURE]
[8] See Richard Siklos, News Corp. and NBC in Web Deal, N.Y. TIMES, March 23, 2007, at C1.
[9] Id.
[10] See, Id.
[11] Todd R. Brown, YouTube Hit with Lawsuit, SAN MATEO COUNTY TIMES, July 20, 2006.
[12] Complaint, Tur v. YouTube, Inc., No. CV06-4436, 2006 U.S. Dist. LEXIS 1627, (C.D. Cal. July 14, 2006).
[13] Heather Green, Whose Video is It Anyway?; YouTube's Runaway Success Has Opened a Pandora's Box of Copyright Issues, BUS. WK., Aug. 7, 2006. [hereinafter Green, Whose Video is It Anway?].
[14] Complaint, Viacom Int'l, Inc. v. YouTube, Inc., No. 07-CV2103, 2007 WL 775611, at *1 (S.D.N.Y. Mar. 13, 2007).
[15] S. Rep. No. 105-190, at 8 (1998) [hereinafter Senate Judiciary Committee Report]. The Report notes that the DMCA was "designed to facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development, and education in the digital age."
[16] Id.
[17] Id. at 19.
[18] Id. at 19; see also 17 U.S.C. § 102(a)(6) (2006).
[19] 17 U.S.C. § 512(k).
[20] Id. at 512(a).
[21] Id. at 512(b).
[22] Id. at 512(c).
[23] Id. at 512(d).
[24] Id. at 512(c)(1)(A)(i)
[25] Id. at 512(c)(1)(A)(ii)
[26] Id. at 512(c)(1)(A)(iii)
[27] Id. at 512(c)(1)(B)
[28] Id.
[29] Id. at 512(c)(1)(C)
[30] Music Publishers To Join YouTube Suit, N.Y. Times, Aug. 7, 2007, at C.
[31] Id.
[32] Tur v. Youtube, Inc., 2007 U.S. Dist. LEXIS 50254
[33] Id. at 7.
[34] 17 U.S.C. at § 512(i)(1).
[35] Id. at § 512(i)(1)(A);
[36] 17 U.S.C. § 512(i)(1)(B);
[37] Tur v. Youtube, Inc., 2007 U.S. Dist. LEXIS 50254 at 9, 10.
[38] Id. at 9.
[39] Id.
[40] Id. at 10.
[41] Id.
[42] Id.
[43] Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, (1984).
[44] Id. at 420.
[45] Id.
[46] Id.
[47] Id. at 456.
[48] Id.
[49] A&M Records v. Napster, Inc., 239 F.3d 1004
[50] Id.
[51] Id.
[52] See, Id.
[53] Id.
[54] Id. at 1022
[55] Id. at 1023.
[56] Id. at 1027.
[57] Id. at 1024.
[58] MGM Studios, Inc. v. Grokster, Ltd., 543 U.S. 913
[59] Id.
[60] Id.
[61] Id.
[62] Id.
[63] Id.
[64] Id.
[65] Id.
[66] Id.
[67] Id. at 947.
[68] Id. at 936, 937.
[69] Id.
[70] Id. at 938-941.
[71] Tur Complaint. Robert TUR d/b/a Los Angeles News Service, Plaintiff, v. YOUTUBE, INC., Defendant. (Heading 20).
[72] Jonathon A. Hyman, How I Learned to Stop Worrying and Love YouTube, at http://www.kmob.com/pdf/videohosting_youtube.htm.
[73] YouTube Fact Sheet, at http://www.youtube.com/fact_sheet.
[74] Miguel Helft, Google Takes Step on Video Copyrights, New York Times, October 16, 2007
[75] Id.
[76] Id.
[77] Tur Complain, supra note 71.
[78] Does YouTube Make Google a Big Target for Copyright Suits?, WALL ST. J. ONLINE, available at http://online.wsj.com/public/article/SB116049721244288215-dh_XDre5B5O8j3fQQ2eaVvj6sxg_20061109.html. This online article features remarks from Harvard Law professor John Palfrey and University of Texas at Dallas economics professor Stan Liebowitz.
[79] Id. ("Google should be able to avail itself of the DMCA's broad safe harbor for copyright infringement under U.S. law.").
[80] Id.
[81] See, e.g., Noam Cohen, YouTube is Purging Copyrighted Clips, N.Y. TIMES, Oct. 30, 2006, at C8 (discussing YouTube's removal of unauthorized Comedy Central videos clips following a request by Comedy Central); YouTube Deletes 30,000 Files After a Copyright Complaint, N.Y. TIMES, Oct. 21, 2006, at C4 (noting that YouTube "quickly complied with the request to remove the copyright materials" by a group of Japanese entertainment companies).
[82] See YouTube Community Guidelines, http://youtube.com/t/community_guidelines.
[83] Id.
[84] See Kevin J. Delaney & Ethan Smith, YouTube Model is Compromise over Copyrights, WALL ST. J., Sept. 19, 2006, at B1 [hereinafter Delaney, YouTube Model]. (reporting that under YouTube's proposed system, "media companies will have a way to have their content removed without resorting to separately sending takedown letters . . . .").
[85] See id. ("YouTube in the future will explore options for sharing online ad revenue with smaller, or amateur creators. But 'right now we're building tools for record labels, TV networks and movie studios.'").
[86] Id.
[87] Id.