Prince Lashes out at YouTube

Prince Lashes out at YouTube

Last month, Prince announced he was planning an infringement suit against
YouTube, an audio and video streaming site where users are allowed to post
content for millions of people worldwide to view. His statement, urging
artists "as creators and owners of their music," to "reclaim their art,"
echoes theories of moral rights, depicting the work as an extension of the
artist, and an integral part of their being. [1] As part of his campaign
against YouTube (as well as eBay and Pirate Bay), Prince has hired Web
Sheriff to search for and remove his content from these sites. The suit,
turning on the issue of authorization of copyright infringement, contains
many shades of similarity to CCH Canadian Ltd. v. Law Society of Upper
Canada, [2] in which authorization was a key issue.

In CCH, the Supreme Court of Canada looked at what exactly constituted
authorization of infringement. They found that the Law Society had not
infringed by placing photocopiers in their library, despite the
possibility that patrons would make copies of protected material. This was
held because, in the words of Chief Justice McLachlin, "Courts should
presume that a person who authorizes an activity does so only so far as it
is in accordance with the law." [3] In other words, following the logic of
CCH, YouTube's existence as an enabler of content sharing should not
automatically be assumed to promote infringement. Rather, it should be
assumed that YouTube exists to promote legal sharing of non-protected
material. This is reflected in YouTube's Terms of Use, agreed upon
implicitly by anyone who visits the site, which state that users agree to
post only non-protected material. [4] Of course, this may come as news to
any average YouTube user, who likely logs on to watch music videos and
scenes from television shows rather than more mundane content that may not
infringe copyright, such as homemade stunt or instructional videos.

The presumption of legality in authorization can be rebutted by showing a
relationship of sufficient control between the authorizer and the
infringer. [5] In CCH, the court did not find such a relationship between
a library and its patrons. With this in mind, how likely is it that a
relationship of control would be found between a website accessed daily by
millions of people worldwide and its users?

The court in CCH also stated that authorization can be found in "acts that
are less than direct and positive, including a sufficient degree of
indifference." [6] It is much easier to find indifference on the part of
YouTube than control. YouTube is infamous among younger generations of
internet users as a free and open site where anyone can watch whatever
they want. The trouble is, what people want is mostly protected by
copyright. Not surprisingly, a random look at the "Videos being watched
right now" section of YouTube's website reveals 4 out of 5 videos contain
protected content. [7] A brief survey of the site reveals a plethora of
music videos, live televised performances, and clips of episodes of
popular TV shows. YouTube certainly must be aware of their image and
reputation as a provider of protected content for free; one wonders if
they should be doing more to prevent infringement. YouTube's statement in
response to Prince's accusations claimed that they actively help to
protect copyrights. However, Prince makes a valid point: if YouTube is so
effective at filtering sexually explicit and violent content, why are
protected videos still so prevalent? (A quick YouTube search for the word
"kill" finds numerous hits for music videos with that name, but none for
actual violence.) If YouTube really does "work every day to help manage
(protected) content," then why is protected content so readily available?
[8] Further, YouTube's statement refers to record labels who "understand
the benefit of using YouTube as another way to communicate with their
fans," subtly suggesting to artists that if they can't beat infringement
in the digital age, they might as well join in and post their content. [9]
While YouTube would like the public to think their stance is one of
concern and vigilance toward infringement, their search results tell a
story of apathy and ambivalence at best.

It must be kept in mind that the parties in this debate are artists who
make millions of dollars from concerts, royalties, and numerous other
sources, and a website who makes millions of dollars from advertising. Are
there any real victims here? The issue of web-based sharing ultimately
boils down to a question of owner rights, user rights, and authorizer
rights. In CCH, the court took a major step in the direction of user
rights. It remains to be seen whether our judiciary's American counterpart
will follow their lead.

[1] Collett-White, Mike. "Prince to sue YouTube, eBay over music use."
Yahoo News (13 September 2007), online: Yahoo Moral rights fit more with
Prince's claim against eBay, who sell merchandise with his name and image
on it, arguably infringing the right of association.
[2] 2004 SCC 13, 236 D.L.R. (4th) 395, [2004] 1 S.C.R. 339, [CCH]
[3] Ibid, at para. 38
[4] YouTube, Terms of Use, online:
[5] Ibid, at para. 38
[6] Ibid, at para. 38
[7] YouTube, online:
[8] Supra note 1
[9] Supra note 1