Freebooting on Facebook - Should the Social Media Giant Face Liability?

• Publication year: 2018

Freebooting on Facebook - Should the Social Media Giant Face Liability?

Nicholas J. Tait
University of Georgia School of Law

FREEBOOTING ON FACEBOOK—SHOULD THE SOCIAL MEDIA GIANT FACE LIABILITY?

Nicholas J. Tait^*

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TABLE OF CONTENTS

I. INTRODUCTION...........................................................................................316

II. BACKGROUND..............................................................................................319

A. AN OVERVIEW OF COPYRIGHT LAW AS IT PERTAINS TO INTERNET SERVICE PROVIDERS (ISP)................................................319
B. VIACOM INTERNATIONAL V. YOUTUBE............................................322

III. VIABILITY OF A COPYRIGHT INFRINGEMENT CLAIM AGAINST FACEBOOK....................................................................................................324

A. DIRECT COPYRIGHT INFRINGEMENT..............................................324
B. INDIRECT THEORIES OF COPYRIGHT INFRINGEMENT LIABILITY................................................................................................325
C. SAFE HARBOR DEFENSE......................................................................328

IV. CONCLUSION................................................................................................330

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I. INTRODUCTION

Advancements in the internet have provided a growing medium for people to publish and view original content.¹ The cost of publication is at the lowest it has ever been, and the amount of content available to internet users is at an all-time high. However, the internet also provides an easy way to make unauthorized copies of original works and share them with others.² The internet industry, content owners, and our legal system have experienced several growing pains in an attempt to strike a balance between incentivizing technological advancements in content production and publication while minimizing the ability or risk of copyright infringement.³

An excellent example of this balancing act is the website YouTube and the legal trouble it found itself in during its early days.⁴ Initially, big content owners argued that YouTube's website would destroy their industries because of how easy it was for YouTube's users to upload copyrighted works and many of these content owners filed lawsuits.⁵ Even though YouTube prevailed in most of this litigation, including a high-profile case against Viacom,⁶ the company still implemented safeguards, such as its Content ID filter system,⁷ which reduced the risk that its users would post infringing content. Moreover, YouTube has created a Partnership Program (and recently made it available to everyone who uploads

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content on its website)⁸ which provides content owners revenue based on the number of views their videos receive.⁹ These efforts create an incentive for the average person to create original content and upload it to the internet, which is perfectly in line with the aims of copyright law.¹⁰ Therefore, it is fair to say that YouTube, despite the fact that infringement still occurs on its website, is a success story in reaching the balance between incentivizing original content production and minimizing the risk of copyright infringement. However, other companies have since entered the video sharing market.

Recently, the social media giant Facebook has developed its video player interface to the point where it competes with YouTube in the number of video views from its users.¹¹ However, Facebook has not gone through the same growing pains YouTube has and therefore does not have the same safeguards to protect against the uploading and sharing of unauthorized videos.¹² As a result, many videos uploaded on Facebook are in fact stolen works from other users.¹³ This problem has been coined "freebooting" and has been publicized by many original content owners who post their videos to YouTube or other websites.¹⁴

These content owners claim that Facebook has turned a blind eye to its users uploading stolen content because Facebook is too busy reaping in the extra ad revenue.¹⁵ Moreover, content owners complain that Facebook does not

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cooperate with them in removing infringing videos.¹⁶ This problem, according to content owners, has resulted in billions of unauthorized views of their works.¹⁷ Instead of having those views credited to them, the views are instead credited to Facebook. This, of course, affects the content owners' ad revenue, which is dependent on the number of views they receive,¹⁸ and in turn, reduces the incentive to create the original work in the first place.

Although freebooting is not exclusive to Facebook, this Note will examine the issue, using Facebook as the focus. More specifically, this Note will analyze the possible redress available to content owners if they were to bring a lawsuit against the social media provider.¹⁹ To that end, this Note will explore whether Facebook can be held indirectly liable for the freebooted videos uploaded to its website by its users.

Part II of this Note will provide background information on copyright law as it pertains to content owners and internet service providers, including a brief synopsis of the Digital Millennium Copyright Act of 1988 (DMCA). This section will also discuss recent cases that have interpreted sections of DMCA and the eligibility requirements for the immunity from liability the act provides.

Part III will explore the viability of a copyright infringement claim brought by content owners against Facebook. This section will analyze Facebook's compliance (or lack thereof) with the DMCA and whether Facebook should avoid indirect liability for its users' infringement. This section will then use the case law interpretations of the DMCA discussed in Part II to determine whether a claim for copyright infringement is possible.

Finally, Part IV will conclude that a claim for indirect copyright infringement against Facebook is possible, if not likely, given the analysis of its compliance with the DMCA. This section will then conclude by suggesting to Facebook that it implement more stringent safeguards against copyright infringement and

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update its take-down procedures to be more effective in order to avoid losing its safe harbor protections.

II. BACKGROUND

A. AN OVERVIEW OF COPYRIGHT LAW AS IT PERTAINS TO INTERNET SERVICE PROVIDERS (ISP)²⁰

Congress is given the power to create copyright protections by Article 1, Section 8 of the United States Constitution.²¹ Congress has used this power to create copyright statutes that give content owners exclusive rights to their original works²² which include the right to reproduce the work in a copy.²³ When another person violates this right (or any other exclusive right in § 106), the statute makes them liable as an infringer.²⁴

To bring a claim for copyright infringement, the claimant must show "(1) ownership of a valid copyright and (2) copying of constituent elements of the work that are original."²⁵ In addition, there also exists a statutory fair use defense to copyright infringement.²⁶ Section 107 of the Copyright Act provides that:

[n]otwithstanding the provisions of section 106 and 106(A), the fair use of a copyrighted work . . . is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.²⁷

"[W]hen considering the purpose and character of a use, courts generally ask two questions: whether the use is for a commercial purpose and whether the use is

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transformative."²⁸ Uses that are for commercial purposes generally weigh against a finding of fair use while uses that are transformative, those that add expressive qualities to the original work, generally weigh in favor of such a finding.²⁹ However, none of the factors in § 107 are determinative and "each must be weighed in relation to the other factors in a particular case."³⁰

Additionally, copyright holders are not limited to claims against those directly responsible for copyright infringement as they can also bring vicarious or contributory infringement claims.³¹ A claim for vicarious copyright infringement "extends beyond an employer/employee relationship to cases in which a defendant 'has the right and ability to supervise the infringing activity and also had direct financial interest in such activities.' "³² A claim for contributory infringement liability "requires that the secondary infringer 'know or have reason to know' of direct infringement"³³ and " 'induce[ ], cause[ ] or materially contribute[ ] to the infringing conduct of another.' "³⁴

Copyright holders can also bring an action for the inducement of copyright infringement.³⁵ "To establish a claim for inducement, a plaintiff must show that the defendant (1) engaged in purposeful conduct that encouraged copyright infringement, with (2) the intent to encourage such infringement."³⁶ Further "[a] defendant's intent to foster infringement can be established by evidence of the defendant's 'clear expression' of such an intent, or of 'affirmative steps [the defendant has] taken to foster infringement.' "³⁷

These indirect theories of copyright infringement posed a serious threat to the development and advancement of the internet since the technology has made "copying and disseminating works around the world incredibly easy, [and] on a scale previously unimaginable."³⁸ In response to this problem, Congress passed the DMCA in an "attempt to update copyright law to keep pace with

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[technological advances of] the internet."³⁹ The act created...