To escape the graveyard of social media wash-ups, Facebook, the declining social media giant,1 has set its sights on YouTube with the emergence of the Facebook video player,2 sharing four billion views daily.3 While this may satisfy our desire for rapid content, an increase in “freebooting” has plagued the Facebook video player, where viral videos are taken from sites such as YouTube and re-uploaded illegally through Facebook’s video player.4 Essentially, the owners of these freebooted videos are missing out on valuable profits, advertisements and publicity that encompass the six billion dollar online video industry.5 In a display of poetic justice, YouTube had previously grown its own video service through freebooting and faced the harsh legal repercussions in a seven-year battle with media giant, Viacom.6
Viacom’s 2007 lawsuit against Google, YouTube’s parent company, claimed that YouTube had directly infringed on copyrighted content from Viacom-owned networks such as Comedy Central.7 YouTube survived monetary or injunctive relief based on the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”) because YouTube acted expeditiously to remove and disable 100,000 Viacom videos upon receiving notice.8 Viacom then argued that YouTube willfully allowed copyrighted material to foster on their site, to which the District Court interpreted the DMCA as placing the burden on the copyright owner to identify and notify YouTube of the infringing material, as it would be unreasonable for a service provider to keep track of a site’s entire content library.9
While Facebook can easily learn from the mistakes of YouTube and implement a content ID system,10 the legal incentive is nominal. Facebook can continue to grow their Facebook player and remain protected under the safe harbor provisions of the DMCA, contingent on removing copyrighted material once notified by the original owner. Furthermore, since the burden falls on the owner to provide sufficient information of the infringing material, Facebook would legally and financially benefit by turning a blind eye and forcing users to navigate the millions of videos in search of their pirated property. Of course while YouTube had won its legal battle against Viacom, YouTube’s 100 million dollars in legal fees and one billion in settlement should have Marc Zuckerberg rethinking his cat and mouse game of copyright infringement, as that cat may turn out to be a lion.11
- Sarah Frier, Facebook’s Popularity Among Teens Dips Again, BLOOMBERG BUSINESS (December 19, 2014, 1:29 PM), http://www.bloomberg.com/news/articles/2014-12-19/facebook-s-popularity-among-teens-dips-again.
- Salvador Rodriguez, Facebook Cranks Up YouTube Rivalry With New Embedded Video Player, INTERNATIONAL BUSINESS TIMES (Mar. 25, 2014, 4:04 PM), http://www.ibtimes.com/facebook-cranks-youtube-rivalry-new-embedded-video-player-1859314.
- Erin Griffith, How Facebook’s Video Traffic Explosion Is Shaking Up the Advertising World, FORTUNE TECH (June 3, 2015, 6:00 AM), http://fortune.com/2015/06/03/facebook-video-traffic.
- Andrew Wallenstein, Facebook Underestimates Furor Over ‘Freebooting’ At Its Own Risk, VARIETY (August 12, 2015, 10:00 AM), http://variety.com/2015/voices/columns/facebook-underestimating-furor-over-video-theft-1201567935.
- The Rise of Multi-Platform Video: Why Brands Need a Multi-Platform Video Strategy, SOCIAL@OGLIVY (July 10, 2015), http://www.slideshare.net/socialogilvy/the-rise-of-multiplatform-video-why-brands-need-a-multiplatform-video-strategy.
- Jonathan Stempel, Google, Viacom Settle Landmark YouTube Lawsuit, REUTERS, (Mar. 18, 2014, 11:13 AM) http://www.reuters.com/article/2014/03/18/us-google-viacom-lawsuit-idUSBREA2H11220140318.
- Joe Silver, Google and Viacom Settle $1 Billion YouTube Lawsuit, ARSTECHNICA, (Mar. 18, 2014, 11:54 AM) http://arstechnica.com/tech-policy/2014/03/viacom-and-google-reach-settlement-in-long-running-youtube-lawsuit.
- See Viacom Int’l, Inc. v. Youtube, Inc., 940 F. Supp. 2d 110, 116 (S.D.N.Y. 2013).
- See id. at 115.
- See Will Oremus, Facebook’s Piracy Problem, SLATE TECHNOLOGY, (July 8, 2015, 11:44 AM) http://www.slate.com/articles/technology/technology/2015/07/freebooting_stolen_youtube_videos_going_viral_on_facebook.html.
- See Silver, supra note 7, at http://arstechnica.com/tech-policy/2014/03/viacom-and-google-reach-settlement-in-long-running-youtube-lawsuit.