Is YouTube a “host” or a “media service”? This question is at the heart of the multitude of YouTube cases throughout the United States and Europe. The most recent case was brought by a German singer, Sarah Brightman, against YouTube, which is owned by Google. The suit is over three of her copyrighted songs that are on the site. Her complaint states that sales on her 2008 album were lessened because viewers could access these videos for free. The German court held that YouTube must pay compensation to those that hold the rights to the copyrighted music when it is uploaded to YouTube without their permission.
The distinction of host vs. media service is particularly important in regards to this suit and others because under European Union rules if YouTube were found to merely be a host, like an internet service provider, then they would be granted some protection from liability for the content they deliver to users. The United States also has a protective provision to lessen the liability of a host contained in the Digital Millennium Copyright Act. However, if they are found to be a media service, like a television broadcaster, YouTube would be held more responsible for its content.
Currently YouTube alerts media owners that their songs or video have been uploaded by a system called Content ID. The owner is then responsible for contacting Google and has to request that it be taken down from their site or they can choose to sell ads that appear when the media is viewed. YouTube does not screen the media before it is uploaded and claims that it would be impossible to do so.
National music collection societies throughout Europe, have begun to make deals with Google YouTube in an attempt to collect some royalties for their artists however, it is too soon to tell if these deals will be profitable and remain agreeable to the artists. At this time there is no uniform way to regulate what is posted on YouTube and so the issue of copyrighted material being accessed for free remains a concern. How should the courts rule – should YouTube be protected from liability and given “host” status or should it be treated as a “media service”?
I can see both sides of the issue. On the one hand, YouTube doesn’t distribute songs for download and, thus, YouTube media isn’t really provided to users in any true sense. On the other hand, media on YouTube is always available. Even if YouTube doesn’t provide users with downloaded “hard copy” media, it provides a functional equivalent because users can access songs at any time as long as they have an internet connection.
Overall, though, I tend to think that YouTube’s advertising scheme is a good solution to this problem. The advertising scheme doesn’t falsely equate streaming media with downloaded media and yet, at the same time, it takes into account the fact that YouTube’s media is always available. By allowing artists to be paid through advertisements each time their songs are accessed, YouTube offers a good compromise because artists are compensated at least for the general use of their work.
Still, I think YouTube probably compensates artists in other ways besides advertisements. On the whole, artists must benefit a great deal from YouTube. I’m sure people buy lots of songs based on what they hear off of YouTube because the site not only allows access to songs, but access to songs in their entirety. As long as a song is good enough, someone will buy it from iTunes, etc. In this way, YouTube – it seems to me – promotes better work from artists. And what could be bad about that?
I personally feel that Google YouTube should not be considered a “media service provider” because Google YouTube does not post media content itself. Rather, users of Google YouTube post media content and therefore, the site should be considered a “host.” Although the site is in a sense “broadcasting” media content, that content is posted by individuals not affiliated with Google YouTube users and therefore the site does not directly control or choose what type of media to post.
While I understand Ms. Brightman’s perspective and claim regarding her 2008 album, I personally feel that a site like Google YouTube can actually work to the advantage of artists rather than to a disadvantage. Because Google YouTube only provides streaming capabilities and not downloads, if people want to be able to listen to a song on their iPod or computer more often than one time and while not connected to the internet, they still would need to download the song or music video, meaning, they would need to purchase the song from an online music store or purchase the album in conventional ways.
Streaming sites, especially ones like YouTube have an extremely broad reach and immense visibility; this can actually increase an artist’s exposure. Artists can benefit from the “viral” nature of online media and free hosting sites like YouTube. Social media and host sites like YouTube are the free advertising and marketing of the future. The more visible and prevalent your brand, your song, or your video is throughout the internet, the more visibility and brand awareness you have.
I think YouTube should be seen as merely a host for media and not a media service. It is instructive to compare YouTube to recognized media services sites like Napster or Lime Wire. These sites at one time allowed users to share and download music for free. The provided music could be stored on one’s computer or IPod indefinitely. The user would essentially “own” the music once downloaded from the site. YouTube does not offer this feature.
YouTube does not allow its users to download music, instead, the content is simply streamed. In order to access the media one must log onto YouTube and re-stream the material each time one wants to view it. The media is never stored on one’s computer and never truly “owned” by the individuals accessing it.
YouTube has put measures in place whereby owners of copyrighted material are notified of third party postings and can request to have their content removed from the site. If an artist is diligent about their exposure on YouTube they can prevent their content from being streamed without their consent.
However, I think many artists realize that the posting of their creative work on YouTube is beneficial to its overall success. Even if one is uncomfortable with the idea of their materials being accessed free of charge, many if not most artists must realize that YouTube is the wave of the future. When was the last time you waited on line outside of Tower Records for your favorite artist’s album? (Tower Records filed for bankruptcy in 2004.) (Lauren Johnston, Tower Records Files for Bankruptcy, CBSNEWS.COM (Feb. 9, 2004), http://www.cbsnews.com/stories/2004/02/09/entertainment/main599008.shtm.)
Some artists even have specialized YouTube pages where they feature their music videos, comments, pictures and other content for their fans. People are always searching for a more intimate way to get to know their favorite artists and celebrities. YouTube has become another way for artists to gain exposure and provide their fans with the interactivity that they desperately crave.
I personally believe that YouTube is both a “host” and a “media provider.” The main purpose of YouTube is to be the host of, and provide media to the masses. The main question is which hat does YouTube wear the most?
I for one feel that YouTube is a “host.” As a host, YouTube allows third parties to upload, and distribute videos to the public, through the use of its servers. It doesn’t matter that people cannot download the videos, or download the music from the video. The heart of the matter is that inidividuals can view and listen to music, posted by third parties, without paying anything to the artist. This sounds very similar to the other internet media hosts named Napster, Kazaa, and Morpheus, whom through the use its servers, provided music and other files to the population for free.
Now when the Court looks at the arguments, I do believe that they will take into account that YouTube can actually benefit the artist. It’s like the argument given when Napster was sued. “Why would the artist care, they’re getting huge exposure?” While this maybe true, it doesn’t negate the fact that people are uploading videos and music without permission from the artist.
I believe that YouTube is handling this situation the best it can. I do know that it attempts to monitor what is posted on its servers, and it does take down videos when people complain that it was posted without permission. However, there is only so much that can be monitored.
I feel the Court will look at this, and consider YouTube a host, and grant them some form of limited liability; however I do not feel it should be totally unaccountable, as it is providing the medium through which people listen to and watch the posted videos.