Music industry changes its tune in copyright lawsuit against YouTube channel Fullscreen

The music industry’s lawsuit against a popular YouTube channel this week could indicate that publishers are looking for savvier ways to attack piracy besides going after YouTube itself, a legal expert said.

The National Music Publishers Association Tuesday filed a copyright infringement suit against Fullscreen, a company that produces, markets, and promotes videos, including music videos, on YouTube. Fullscreen directly profits from advertising revenue generated by unlicensed music videos on its channels but does not compensate songwriters or music publishers, the NMPA alleges.

Fullscreen claims to operate more than 15,000 YouTube channels with more than 200 million subscribers.

Previous cases have pitted industry against unlicensed music creators on YouTube—such as Viacom’s headline-grabbing $1 billion copyright lawsuit against the site—but NMPA’s case, which focuses on cover-song videos, is unique due to its broader scope.

“This case seems more comprehensive and ambitious than the prior lawsuits,” said Eric Goldman, director of the High Tech Law Institute at the Santa Clara University School of Law.

“I don’t recall a similar case involving a major YouTube channel or implicating lots of cover song videos in one case,” he said in an email.

NMPA’s lawsuit could signal that publishers are becoming smarter about how to fight back against unlicensed music content on the Web. In April a judge ruled against Viacom in that case, citing the “safe harbor” provisions of the Digital Millennium Copyright Act that protected Google-owned YouTube from liability.

The basic idea behind the ruling was that YouTube could not be expected to police every piece of unauthorized music and video content on its site, and that the burden to remove the content largely fell on the copyright holders.

What does it all mean?

Tuesday’s case suggests that the music industry has taken that ruling to heart. “This is a substantial advancement from the Viacom versus YouTube case, where the copyright owners are still trying to hold YouTube responsible for the conduct of its individual publishers,” Goldman said.

“It appears the NMPA is tacitly accepting that YouTube is a platform that enables good and bad conduct, but YouTube is not the infringer itself,” he said, adding that the case shows “much more enlightened thinking.”

Also, cracking down on cover-song videos, which have not seen a lot of litigation, could make NMPA’s suit an interesting test case, Goldman said. Cover-song videos are eligible for statutory licenses to record the song but the license may not extend to performing the song in conjunction with a YouTube video, he explained.

Mitch Stoltz, a staff attorney at the Electronic Frontier Foundation, said he had not seen a suit like NMPA’s before, but at the same time it didn’t surprise him. He compared the case to instances of groups like the American Society of Composers, Authors and Publishers or Broadcast Music Inc. filing suit against restaurants or bars for playing music without a license to do so. That happens “all the time,” he said in an interview.

The NMPA case against Fullscreen is tricky though, Stoltz said, because it will require the court to determine how much of the content curation is done by Fullscreen.

“Can anyone post, or does Fullscreen select the videos? That makes a difference,” Stoltz said.

Both Fullscreen and YouTube declined to comment on the case.

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