TechLaw

If file swapping tops Hollywood list of copyright woes, skirmishes with service providers over portability of content is fast becoming a close second. Companies responding to consumer demand for simple ways to shuttle lawfully acquired content between one device and another have come up with ingeniuous solutions that sometimes sidestep established licensing models.

But content owners got an early Christmas gift from the Librarian of Congress. The Librarian addressed space shifting in his third triennial rulemaking on proposed exemptions to the Digital Millennium Copyright Act. The Librarian rejected a proposal that would have permitted consumers to escape DMCA liability for bypassing security measures that prevent them from moving lawfully purchased content between devices.

The Librarian endorsed the view of the Register of Copyrights, who concluded that "the reproduction of those works onto new devices is an infringement of the exclusive reproduction right unless some exemption or defense is applicable."

Hollywood is hard at work trying to keep the portability issue in check. The recording industry has sued XM Radio over a portable device that allows users to save songs played over the program stream. Several cable networks have sued Cablevision over a virtual DVR service that allows consumers to save programs to a remote server. And TiVo has disabled its TiVoToGo feature (which allows subscribers to easily move content between a PC and their TiVo) on its new, HD set top box. EFF conjectures that this came about in response to pressure from Hollywood over piracy concerns.

Now, fights over portability are moving to a new frontier... video sharing sites, such as YouTube and Google Video. The content of these sites are ideally suited for portable devices. The modest file size of the video clips combined with their short duration make them great filler for down time while commuting. So, it was natural enough that a few clever people would come up with a way to peel the videos off the Internet and onto their portable media players.

One such workaround, created by Michael Arrington of TechCrunch, prompted a cease and desist letter from YouTube. The video sharing site alleged that the software tool violated its terms of use (which, according to YouTube, forbids downloading of content), tortiously interfered with its business relationships, and amounted to an unfair business practice.

YouTube elaborated in its letter that "[d]ue to Techcrunches video download tool, content creators and owners are less likely to upload or otherwise license content to YouTube due to their fear that the content can and will be copied and downloaded against their will."

Perhaps. But it is hard to see how that fear would not already be agitated by language in the YouTube Terms of Service that grants to each user a non-exclusive license "to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service."

Equally likely, services such as YouTube want to control migration of their content to other devices not just because of copyright infringement concerns but also so they can license user-created content to service providers. The New York Times has reported that YouTube is expected to announce a deal to provide select video clips for use on Verizon cell phones, through Verizon's Vcast network.

Of course, licensing deals like this depend on YouTube's ability to prevent users from easily porting the content to their cell phones and media players on their own.

Just like with P2P, it's all about distribution.