Do We Need to Sue Facebook?
Hank Green

It sounds like the freebooting issue isn’t going away which is painful, but not surprising. What is surprising is the lack of clear action on the part of Facebook. The idea of taking on the most powerful, wealthy and “lawyered up” companies in the world isn’t a pleasant one and speaks to the fact that collective action from independent creators is hard to make happen because even though YouTube creators have massive audiences and are making real money — the industry is still disorganized and lacks collective voice. Perhaps we should start a union?

Let me say first that the issue of copyright infringement in the reality of a decentralized digital media distribution era is unbelievably complex. Yes YouTube has content ID which clearly helps some creatives and media companies — but it is certainly not a great system and has been abused since its inception which I fear has bad effects on free speech. I am working on a project now that I think is a better option, but it is complex and the market is fragmented and who knows if it will stick :)

On the specific question of a suit — Any individual (or proper class) with standing to claim violation of copyright can sue Facebook. Winning (or surviving even) a suit against FB is another question completely.

When VIACOM sued GOOGLE related to the wholesale infringement that was going on at YouTube they claimed 79,000 copyrighted videos where being viewed on the site. Based on that volume of registered works infringed and the losses claimed (damages in cases of willful infringement cases can incur per violation statutory damages that can quickly become massive) VIACOM claimed to be entitled to $1 billion in damages.

Both parties had big pockets and litigated for years likely to the tune of tens of millions in legal fees before they settled. It is important to note that the DMCA does provide safe harbor for platforms like YouTube and Facebook so that there is an extra burden in providing actual knowledge of infringement and lack of response. None of this sounds like fun for anyone but it doesn’t mean you shouldn’t file a suit if you have been wronged.

Here are some questions to think about if you want to consider it. Have YouTube channels subject to freebooting been reporting this to Facebook? How have reports been made? Are there records establishing that even after requests have been made the videos have not been removed? If so share them publically and keep bringing attention. I will follow the conversation and hope as a group we can figure out how to protect creators and free speech online!

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