DMCA and Mashups: The GoogTube & MySpace Perspective

Just got the latest Bambi Francisco NetSense email in my box. The topic is how will copyright holders treat GoogTube. After some discussion on strategies for getting the most money out of Google, the discussion moves to DMCA and then mashups.

The biggest reason the media giants don’t have much legal ground to stand on is because of the protection of the Digital Millennium Copyright Act (DMCA) safe harbor, which offers ample protection to YouTube and, frankly everyone on the Internet, according to Fred von Lohmann, senior intellectual property attorney at Electronic Frontier Foundation.

Translation: The DMCA essentially says that even if a company is infringing, they get a free pass.

They would only be found to be willfully infringing if they did not respond to a notice to take down copyrighted material. So, even if I can go to YouTube and see 500 video clips of Seinfeld, YouTube would not be liable under the DMCA, even if it’s not proactive about taking down the material, according to von Lohmann.

This safe harbor protection that Congress granted to Internet companies in 1998 puts the burden on the copyright owner and the infringer, not the technology or service that allows for such material to be delivered or shared, said von Lohmann, who makes an excellent point about how the entire Internet ecosystem would be in trouble if it weren’t for the DMCA.

After all, if the DMCA didn’t work, Google might be held responsible for linking to a page that has copyrighted content, he said. The DMCA has to provide protection or else, as von Lohmann puts it: “The Internet would be sued out of business.”

Not only would the Internet be sued out of business, some potentially expressive and interesting content might not ever emerge. About 19% of Internet-using teenagers and 18% of Internet-using adults have mashed up their own content with content owned by someone else, according to Pew Internet Research.

And, where is that mashed-up content? Well, everywhere, and very likely on the No. 1 hangout on the Web, called MySpace.

Von Lohmann pointed out that News Corp’s MySpace has a significant amount of copyright material too. So the company might be setting a precedent that would adversely affect them if they were to sue Google. So, will there be lawsuits from big media against Google and YouTube? There’s a low probability that the big guys will sue Google, according to von Lohmann. But there will be lawsuits, he predicted. They just won’t be aimed at YouTube, but rather the lower hanging fruit.

About Simeon Simeonov

I'm an entrepreneur, hacker, angel investor and reformed VC. I am currently Founder & CTO of Swoop, a search advertising platform. Through FastIgnite I invest in and work with a few great startups to get more done with less. Learn more, follow @simeons on Twitter and connect with me on LinkedIn.
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