Fox Apes RIAA to Save Jack Bauer

Twentieth Century Fox has subpoenaed Google’s YouTube, demanding that the video service release the identities of users who recently uploaded pirated videos of the “24” and “The Simpsons” TV series.

With the subpoena, which was issued January 18, Fox may be taking a page from the legal playbook of the Recording Industry Association of America (RIAA).

Starting in 2003, the RIAA used subpoenas to force Internet service providers and others to provide the identities of users accused of illegally swapping songs, retrieved the names of those people and promptly sued them.

The campaign involved numerous lawsuits and resulted in reams of negative publicity for the music industry. By many accounts, though, those tactics also helped to dramatically reduce the amount of illegal song swapping taking place online.

Fox has not said it will file charges against those who are found to have posted the episodes of the wildly popular anti-terrorism drama starring Kiefer Sutherland. However, the subpoena issued to YouTube may suggest it intends to do so.

The “24” episodes in question appeared on YouTube before they aired on Fox, whereas “The Simpsons” episodes were of an older vintage.

Fox is also subpoenaed another sharing site, LiveDigital, which said it was in the process of complying with the subpoena.

YouTube has said only that it is reviewing the request.

The moves underscore just how high the stakes have become for the owners of video content, as high-speed Internet connections enable users to have virtually the same viewing experience online as they do on television. For Fox, the two TV shows in question are among its most highly rated and, as a result, command the highest advertising rates.

Echoes of the Past

Fox is undoubtedly interested in finding out how unaired episodes could be made available online. If it can find the responsible party, the media giant may be able to bring criminal theft charges as well as copyright infringement claims, according to legal experts.

The approach — and the apparent decision not to sue YouTube directly — may be a nod toward the protections that YouTube and, by extension its parent company Google, enjoy under the Digital Millennium Copyright Act(DMCA).

“It appears that both sites have acted in accordance with the DMCA,” Michael R. Graham, an intellectual property attorney and partner with Marshall Gerstein & Borun, told the E-Commerce Times. “While copyright owners can demand infringing material be taken down, they would need a subpoena to obtain user names, which YouTube’s privacy policy says won’t be turned over to third parties.”

Both video-sharing sites will likely turn over the data rather than fight the subpoena, Graham noted. “In order to prevent continued posting of copyrighted works, Fox needs to proceed against these illegal postings by the individuals involved, and both YouTube and LiveDigital need to cooperate — which I presume they will as good digital citizens,” he added.

A Fox-YouTube Showdown?

Getting information from YouTube about the origin of possibly infringing material may not necessarily reveal the identity of those Fox is seeking, Graham noted.

Nonetheless, YouTube will probably comply with the request for information. Michael J. Meurer, director of the Institute forBusiness, Law & Technology at the Boston University School of Law, noted that many Internet service providers and other companies may be reluctant to comply for fear of being seen violating their own privacy policies. “ISPs sometimes fight these subpoenas because they clash with their own privacy policy, but they usually comply,” he said.

Google has moved to demonstrate YouTube can become a legitimate distribution channel for video content owners without losing its social media roots. It has stepped up monitoring of the site for copyrighted material and has purged hundreds of video clips that it believed were infringing.

In some ways, a Fox-YouTube showdown could take on broader implications.

Fox’s parent, News Corp., is also the owner of other Web properties, most notably the social networking site MySpace.YouTube is now part of Google, against whom News Corp.’s online entities may compete for advertising dollars and viewer eyeballs.

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