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”?