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Wouldn’t it be a gas if pornography — or rather, the absence of pornography — turned out to be YouTube’s undoing? If you think, like billionaire with a bullhorn Mark Cuban, that the idea has legs, you should be paying close attention to another vid-share site, […]

Wouldn’t it be a gas if pornography — or rather, the absence of pornography — turned out to be YouTube’s undoing?

If you think, like billionaire with a bullhorn Mark Cuban, that the idea has legs, you should be paying close attention to another vid-share site, Veoh, which is currently embroiled in a lawsuit with Titan Media, a publisher of gay erotica. The lawsuit is a potentially important legal test of Web video companies’ liability for copyright infringement claims, and yesterday Veoh was compelled by the court to begin revealing information about its traffic, its users, and its process for monitoring uploads.

At the most basic level, Titan wants to show that Veoh has the ability to supervise infringing activity, whether for porn or otherwise, and thus they’re liable for the infringement.

Here’s Titan’s strategy so far, and how Veoh has fared:

1. Demonstrate that pornography on Veoh attracted a lot of traffic:
Last June, a day before the lawsuit was filed, Veoh removed all pornography from its site. So Titan asked the court to compel Veoh to release its traffic logs, hoping to show a drop off in visitors after June. The court agreed, citing an A&M Records decision against Napster which stipulated that “financial benefit exists where the availability of infringing material acts as a draw for customers.”

2. Argue that Veoh’s inability to monetize the porn doesn’t matter:
Veoh then argued that, even if the material on its site infringed, it was unable to monetize it anyway. But the court cites another case involving racy content — Perfect 10 v. Google — and says that even a broad definition of “direct financial benefit” encompasses a “future hope to monetize.”

3. Find out how Veoh handles user uploads and tracks users:
Titan also requested any documents that demonstrate how Veoh handles user uploads. Veoh resisted, arguing that it “does not have a formal document setting out its policies and procedures as to submitted content,” but the court has compelled the company to release whatever it does have. Veoh then argued that it should only have to reveal user identities related to the seven infringing works cited in Titan’s complaint. But the court argues that Titan is “entitled to know whether Veoh generally has the ability to identify users who submit material for publication on its website.”

4. Show that there’s a relationship between how Veoh tracks porn and other content:
Titan asked Veoh to explain their policy for dealing with porn. Veoh argued that there is no relationship between its right and ability to supervise infringing activity and the “adult” or “non-adult” content of the submitted material. But the court disagreed, stating that the requested information could lead to the discovery of evidence showing how effectively Veoh was able to regulate the broadcast of content on its website.

So far no good for Veoh, which may be implicated by a drop-off in traffic and its ability to track users. (A Veoh representatives said the company does not comment on ongoing litigation.)

And while this is simply the normal process of discovery in a civil case, the results may presage to some small degree the imminent court battle between Viacom and Google. Why? Because YouTube, despite their protestations to the contrary, probably filters for porn. (If YouTube doesn’t screen for porn, then it is the lone example of a video service that dissuades — without doing anything — users from uploading explicit content.)

If it is revealed that YouTube does filter for porn, then they’re in a bit of a pickle. According to the decision in A&M against Napster in 2001, the ability to block access to a particular environment for any reason is evidence of the right and ability to supervise. In order to escape vicarious liability, that right has to be exercised as much as possible. Turning a blind eye creates liability.

So in its defense, YouTube has to figure out how to show the court that its filtering mechanisms work without admitting they can tell what types of content are being uploaded. Their upcoming filtering mechanism, “Claim your Content,” may be one way to massage that point. The details of that filter aren’t known, but the title makes it sounds like it’s the media companies who will be proactively searching for copyrighted material, not YouTube.

At any rate, it’s a bit of an irony that Viacom’s best argument against YouTube might not rely on its own content. Their argument could rely on porn.

  1. [...] Googlewatch.eweek.com says it won’t work and details the reasons. He also takes a completely different take elsewhere, arguing that the ability to filter out porn could do come back to haunt [...]

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  2. [...] NewTeeVee » Could Veoh’s Porn Problem Haunt YouTube? Porn is important. For so many reasons. Hard to swallow, some may say… (tags: legal video porn) Posted by zeroinfluencer Filed in del.icio.us links [...]

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  3. SuperLegendarySmash Wednesday, May 2, 2007

    There ass needs to get sued even more veoh is just full of problems.

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  4. Not so long ago, the courts made a distinction between sites that made an attempt to editorially filter content and those that did not. Prodigy suffered from a libel action brought against it because it claimed that it filtered content. CompuServe and AOL both survived a libel action because it did not. Though libel cases are not the same as copyright infringment: I wonder why social networking sites should be held responsible for videos they neither solicited nor sought.

    There have been mixed reviews in copyright cases. I cannot support the wholesale uploading of copyrighted material on YouTube, Veoh or other social networking sites. At the same time, given the technological sophistication available to program producers–I find their claims rather lame that they cannot properly encode and protect their digital properties. It is like someone who refuses to shut their front door calling the police everytime someone comes in and steals from them when all they would have to do is lock the door. If Sirrus and XM Radio can figure out a way to get content to millions of listeners who pay for their sevices and deny them to those who do not, surely program producers can do the same. Stealing is never right and copyrights need to be honored–but program producers need to step up and take responsibility instead of constantly suing users and websites.

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  5. Check out http://www.pornotubeblog.com for a collection of youtube style amateur porn videos

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  6. Most of those “porntube” sites don’t work well – they don’t have the infrastructure to handle the bandwidth. PLUS there are too many sub-genres, for instance: Zen and the Art of PORNOGRAPHY! :D – I’m not Kidding!

    Check it out:
    http://www.amazon.com/ZEN-ART-PORNOGRAPHY-Harold-Johnson/dp/1438204302/ref=sr_1_2?ie=UTF8&s=books&qid=1207783137&sr=8-2

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  7. This is a great one to watch. Thanks for the article.

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