I interviewed David Michail, an attorney specializing in media, entertainment, and technology law. David talks with me about some of the important legal issues today for video marketers publishing on YouTube and online video in user-generated content, copyright, defamation, trademark, and otherwise objectionable material.
A Legal Video Interview, about Video, with Attorney David Michail
David was extra generous in allowing me two separate interviews. For those who prefer to read over watching a video interview, I've included his e-mailed answers to my questions below. I do recommend watching our follow-up interview that he had his videographer shoot for us.
DISCLAIMER: The following information is presented for informational purposes only, and should not be construed as legal advice. For that, we strongly recommend you consult with an attorney!
The video interview with David is nearly 16 minutes long, and I've time-coded each of the questions so you can go directly to the parts that interest you. (Closed caption on YouTube will be made available soon.)
(00:00) About David Michail, attorney
(00:49) How does a lawyer like yourself help clients doing online video and new media; and what types of clients do you have?
(01:10) What is your legal definition of user-generated content as it applies to online video?
(1:50) What are the legal issues businesses have to deal with when doing UGC and online video?
(2:29) What happens if a user takes professional video and mixes it into their own video?
(3:00) What legal issues with UGC video do businesses tend to get into the most trouble over?
(3:54) What are the legal consequences for businesses publishing online video who don't follow the law? What tend to be the most common legal claims? How does it impact their business?
(4:34) What areas of the law need to mature to help businesses do a better job with UGC and online video?
(5:49) How does the Digital Millennium Copyright Act ("DMCA”) apply to online video?
(6:45) How has the DMCA been good for video publishers?
(8:08) Besides publishers, who else does the DMCA affect, legally?
(8:59) What is your own opinion of the DMCA?
(10:46) Should YouTube be held responsible for users' copyright infringement?
(12:20) Does the DMCA need to be revised?
(13:20) How are YouTube's Content ID tools helpful to businesses? What are the problems or concerns businesses have with YouTube's Content Partner program?
Legal Video Q&A: YouTube and the Law
Grant: What legal issues has YouTube really brought forward for businesses that have made it deserving of serious legal inquiry (such as from attorneys like yourselves)?
David: The center of significant litigation with respect to YouTube is, of course, two areas:
- Copyright infringement and;
- The interpretation of the Digital Millennium Copyright Act ("DMCA”) safe harbor (17 USC Section 512).
While most publishers and content owners carefully follow copyright law, what's at stake is how broadly or narrowly to interpret the obligations of service providers under the DMCA; and to what extent do they blow their safe harbor immunity if they take any affirmative steps to police copyright infringement, other than as prescribed under the DMCA take down obligations.
Grant: How well do you think YouTube is doing in protecting intellectual property, while balancing fair use and other users' rights?
I don't think YouTube is doing a good job at all in protecting intellectual property; but my argument is that they have no obligation to other than what is prescribed under the DMCA.
There are allegations being submitted in the litigation which points out that YouTube founders deliberately chose not to take down infringing content despite receiving notice, and knew about specific instances of infringement and capitalized on it without regard to the content owners' intellectual property rights. If these allegations are found to be true based upon the evidence (upon appeal), then, in fact, DMCA safe harbor still is intact; it's just that YouTube did not follow the statutory requirements to maintain their immunity.
Now the question of fair use is interesting because a service provider (such as an ISP or Web host) does not want to be in a position to make a judgment call on the difference between free speech and copyright infringement. So sometimes, choosing to do nothing absent a take down notice, is a prudent course; because once a publisher avails itself to some protective duty, they can't put the toothpaste back in the tube, so to speak, and still claim immunity under the DMCA. The DMCA does not have a "good guy" clause that extends immunity to service providers exercising control in good faith to mitigate infringement.
Since this issue has not been addressed by either Congress or the courts, its best sometimes to do nothing and just follow the letter of the statutory requirements.
Grant: Some people seem to think that when you make a video available on YouTube, you are basically granting permission for anyone else to take that video and use it however they like, wherever they like?
There is no permission being granted or license to anyone other than to YouTube to republish the content as you deliver it. So making derivative works or unauthorized copying by third parties is copyright infringement; and you can still go after these people for damages and/or an injunction.
Sometimes, there is a business reason for allowing people to re-publish the content (e.g. viral marketing) and a company may encourage this because the IP is not as important as the brand awareness or accomplishing the intention of the campaign.
Grant: Is YouTube Content ID program (including their Audio & Video ID tools along with their Content Partner program) really about copyright protection?
It's not about IP protection, but rather about ensuring the maximum revenue sharing exploitation for both the content owner and YouTube. YouTube would not have developed the tool, if there was not some economic justification for it. The point is to be able to monetize the inventory in a legal manner and control the supply of the content by either filtering copied materials, or wrapping those materials with advertising so as to maximize impression revenues.
Grant: What was the situation like for content owners before YouTube's Content ID Tools program?
Before YouTube's Content ID program, content owners [had] no opportunity to monetize on infringing content on Youtube, aside from suing infringers (and YouTube/Google).
Grant: What have been the benefits for YouTube Parnters with the Content ID program?
YouTube's Content ID Partners can exploit YouTube's audience and ad sales platform to monetize their content on a different distribution platform with full tracking tools.
Grant: What improvements do you think would be beneficial from a legal standpoint – for copyright owners, for copyright users, and for YouTube?
I suggest having the content owners make available, for free, a filtering technology with open API's so that publishers can use this technology without having any affirmative obligation to do anything further. As for YouTube, they have their own financial agenda, so I think their Content ID program is an incentive-based system to get Content owners to play ball with them and make YouTube more money off premium content.
Legal Video Q&A: The Digital Millennium Copyright Act (DMCA) and Online Video
Grant: What are the ways that the DMCA can apply to online video?
The DMCA applies to service providers who allow users to publish all types of intellectual property on their web site or mobile platform, including video.
Grant: What safeguards do you find with the DMCA that have been generally positive for video producers and publishers?
The DMCA provides a low cost remedy to video producers to have their content removed from websites due to infringement; and obviously publishers enjoy the safe harbor immunity for essentially being a transient platform for other people's activities.
Grant: What safeguards do you find with the DMCA that have been generally NEGATIVE for video producers and publishers?
For the video publishers, obviously, it keeps the policing burden on them to keep monitoring the Internet for unauthorized use of their content. As far as publishers go, I would like to see a "good guy" clause that allows them to be good Samaritans and exercise some discretion to take down what could be construed as infringing content without creating an affirmative duty to continue doing so, or face liability from consumers trying to protect their First Amendment free speech rights.
Grant: What is your opinion of the DMCA and its protections/restrictions on video content (online), and the use of it by others?
It is a bit vague, but typically statutes are drafted broadly so courts can interpret legislative intent. The protections of the DMCA for service providers is that it prevents burden shifting, although the big content providers are trying to push this envelope more and more.
Grant: What, if anything, do you think needs to be revised about the DMCA?
Like I mentioned above, the DMCA needs a "good guy clause”; and the criteria for what constitutes "knowing" of an infringement when there is a plausible argument for fair use; and give deference to a judgment call to the service provider.
About David Michail, Attorney
David serves as the chief strategist and managing principal of metlawgroup, a premier AV®-Rated Media, Entertainment and Technology transactional law practice in Los Angeles, California. He is frequently retained as "consulting counsel" by several Entertainment law firms in Los Angeles, and represents both emerging market and Fortune 1000 clients in various IT and entertainment related projects. His practice niche includes a unique combination of New Media, Advertising and Marketing Law, Entertainment, Technology and Internet, Corporate, M&A and Business transactions.