Copyright law is venerable. The Internet is cutting edge. The two intersect in the $1 billion lawsuit filed three weeks ago by Viacom against YouTube and Google. And the legal conflict has implications for everybody in television, including TV stations.

The background
From the start, the U.S. Constitution empowered Congress to "promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Back then, it was difficult to copy a created work, and distributing required a horse or canal barge.

Two centuries later, Congress passed the Digital Millenium Copyright Act of 1998 (DMCA) to begin to address the Internet, which distributes "writings and discoveries" instantaneously to millions around the globe.

Among other things, the DMCA added new Section 512 to the federal Copyright Act. Entitled "Limitations to Liability Relating to Material Online," 512 relieves online service providers (such as ISPs and search engines) from liability for infringing transmissions if certain conditions are met. 

In effect, the conditions test whether the service provider is merely a passive conduit between an Internet sender and the sender's designated recipients.  If yes, the service provider has no liability.

The main conditions are:

• The transmission must be initiated by the sender, who selects the content.
  
  
• The service provider does not alter the content.
  
  
• Upon receipt of notice that the material is used in violation of copyright, the service provider "takes down" the material promptly and takes reasonable steps to prevent further transmissions of it. This "notice and takedown" aspect is central to the act.

The DMCA also relieves search engines like Google and Yahoo from liability for linking users to other sites with infringing material. Service providers must also terminate subscribers who are repeat infringers. Also a factor is whether the service provider profits from use of the material.

The lawsuit
Founded in February 2005, YouTube quickly became one of the world's main Internet destinations by making it easy for individuals to upload and share "user-generated" videos. YouTube runs advertising alongside them. 

Last November, Google, which was born the same year as the DMCA, bought YouTube for $1.65 billion. Google noted then that You Tube delivered, every day, more than 100 million video views including 65,000 new videos. Google described its own mission as "to organize the world's information and make it universally accessible and useful."

Viacom and partners sued Google and YouTube on March 13, 2007, in federal court in the Southern District of New York, known for its copyright expertise. Viacom seeks at least $1 billion in damages for copyright infringement and a permanent injunction.

According to the complaint, the Internet has revolutionized the way Americans inform and entertain themselves. But some entities, "rather than taking the lawful path of building businesses that respect intellectual property rights on the Internet, have sought their fortunes by brazenly exploiting the infringing potential of digital technology. YouTube is one such entity."

The complaint alleges that YouTube has removed itself from the protections of Section 512 by facilitating and participating in infringement by users, and by failing to control the infringing uses from which it profits. Viacom claims include:

• You Tube gives users libraries of Viacom programming such as MTV, South Park and The Daily Show with Jon Stewart for unauthorized viewing and excerpting in uploaders' home-made videos. Copyrighted Viacom programs make up a major part of "user-generated" videos shown on YouTube.
  
  
• YouTube has a "take-down" system for pornography on its site, but impedes take downs of copyright material. For instance, it removes only exact duplicates of challenged programs and allows users to make slight variations so it can continue to post them.
  
  
• YouTube only uses copyright filtering of its site—a way to find problematic programming—for parties that grant YouTube a license to use the programming.

The suit is in an early stage. At this writing Google and You Tube had not yet filed an answer. A court scheduling order is due by July 11, but it could slip.

The parties could settle at any time, which could provide a practical precedent, or they could battle to a final court decision. Either way, the case could add meat to the bones of the law around copyright and the Internet. The case could be a video analog to the Napster audio precedent.

The implications
Everybody in television could be affected by the case because seemingly everybody in television seems interested in distributing content on the Internet or vulnerable to having others distribute their copyrighted content online without permission or compensation.

Everybody, of course, includes TV stations, which produce content daily and are expanding its distribution to the Web, including their own sites and others, and through other digital media such as multicast channels.

Stations need to be aware of how clips from their newscasts are being used on the Internet and be prepared to invoke their notice and take-down rights if they spot online misuse.

Some stations are experimenting with allowing viewers to upload material to station Web sites. Such stations could become the targets of infringement complaints and need to be responsive to them.

Stations that are considering licensing clips to third parties should be careful about what rights they are giving up and require that the third parties comply with applicable law and indemnify stations for the consequences of not doing that. 

Whatever the eventual outcome of Viacom v. YouTube, attention to copyright—to best protect your own material and avoid liability to others whose works you use or want to use—is timely now.

As they say in television, stay tuned.

This column on TV law and regulation by Michael D. Berg, a veteran Washington, D.C. communications lawyer and the principal in the Law Office of Michael D. Berg, appears monthly. He is also the co-author of FCC Lobbying: A Handbook of Insider Tips and Practical Advice. He can be reached at mberg@michaelberglaw.com or 202-298-2539.

Note: This article provides general guidance only and is not a substitute for individualized legal advice for particular situations.