When NBC Universal asked Youtube to remove SNL’s Lazy Sunday skit, CEO Chad Hurley initially suggested to NBC that maybe it was someone at NBC or SNL who had uploaded the video clips in question. I’m not sure the argument flew with NBC’s lawyers, but it got me thinking: now that copyright owners like record labels and film studios are closing in on Google (who has since acquired Youtube), should Google and YouTube use the argument that:
We’re innocent until proven guilty. In other words, shift the burden of proof onto the copyright holders and make them prove that it was not an employee at a record label studio or film studio who uploaded the clip in question to get free promotion? I know it’s absurd, but what isn’t absurd in litigation?
It’s a strategy that would irritate the studios and labels, but it might work.
Think about it. Who owns the content? The labels and studios. But the labels and studios need to determine which stakeholders deserve a cut of the monies.
Let’s run with that notion.
As it stands now, just because a studio or label deserves credit and compensation does not guarantee that an artist - who effectively created the content but is not guaranteed a cut - would get a cut.
So… YouTube can argue that even if the labels and studios can prove that it was not an employee of theirs who uploaded the material, it might have been the artist in question.
A smart judge would not buy the argument… but I would be curious to know what the law says about all of this.
After all, reasonable doubt and the specter of doubt comes into play here.
My gut, there are more than enough cases of artists, artists’ managers and publicists uploading content onto Youtube to suggest that Google/YouTube’s lawyers can place a seed of doubt in a judge’s mind that the content was in fact uploaded by someone who owns the rights and wants to use the platform for promotional purposes.
If Google/YouTube can create this confusion in the Judge’s eyes, then it could effectively put the entire burden on the labels and studios and not themselves.
Is this crazy?
It might be. But if labels and studios realize that convincing a judge that Youtube is the lone bad guy in the picture is hard, they might reduce their leverage and blood-thirsty stance vis a vis Google/Youtube and the other file sharing players.
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