On Friday, Viacom - the owner of major content providers such as Paramount Pictures, Comedy Central and MTV filed its opening brief in its appeal against Google's video sharing website, YouTube. The filing comes as the latest move in the four year old copyright infringement dispute concerning the posting of pirated video clips on YouTube.
In June, a federal district court in Manhattan ruled that YouTube was protected by the safe harbor provisions of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512(c), and that despite having "generalized knowledge" that there were infringing postings on its website, the company was not itself liable for copyright infringement because it did not have adequate notice of the particular infringements at issue. Where it had particularized knowledge, the court found, it had promptly taken the infringing postings down.
In enacting the DMCA, Congress created procedures to facilitate the policing of copyright infringements on the Internet without imposing an undue burden on Internet service providers (ISPs). The procedures are intended to provide specified ISPs with a "safe harbor" from liability for copyright infringement.
In its opening brief, Viacom argues that YouTube intentionally facilitated the copyright infringement and should not be protected by the safe harbor provisions at all. According to Viacom, to retain the safe harbor protection under § 512(c), YouTube had an obligation to take reasonable steps to prevent further infringement and should have used tools it had at its disposal to curtail the infringement it had fostered. Viacom asserts that YouTube was aware of massive infringement, “welcomed” the infringement and sought to expand and profit from it. It cites internal email in which YouTube acknowledged, for example, that that if it “just remove[d] the obviously copyright infringing stuff,” traffic would “go from 100,000 views a day down to about 20,000 views or maybe even lower.” It also argues that the lower court erred in not finding that the evidence it presented sufficiently established that YouTube knew of the infringing activity on its site and thus had "aware[ness] of facts or circumstances from which infringing activity is apparent” taking it out of the safe harbor provisions.
On the other hand, YouTube will likely argue in response that the lower court correctly applied the DMCA's safe harbor provisions and that it did not have “actual knowledge” of the specific acts of infringement at issue and that its "generalized knowledge" was insufficient to disqualify it for those protections.
One interesting issue is whether the Supreme Court's decision in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) applies or is even instructive with respect to Viacom's argument that YouTube should at least be held secondarily liable for copyright infringement for its encouragement of infringing activity. The lower court rejected the Grokster argument and found that the case was inapplicable because it did not involve ISPs and was based on common law rather than the statutes at issue in this case. However, there are important parallels between the two cases: each case attempts to address secondary liability issues and each is concerned with striking an appropriate balance between promoting innovation and protecting copyright rights. Thus, the the Second Circuit may find the Supreme Court's guidance in Grokster instructive on the secondary liability issues before it.
The lower court's opinion and order in, Viacom International Inc., et al. v. YouTube, Inc., et al., Case No. 07 Civ. 2103 (June 23, 2010) is available here. Viacom's opening brief in its appeal, now pending in the U.S. Court of Appeals for the Second Circuit as Case No. 10-3270, is available here.
In June, a federal district court in Manhattan ruled that YouTube was protected by the safe harbor provisions of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512(c), and that despite having "generalized knowledge" that there were infringing postings on its website, the company was not itself liable for copyright infringement because it did not have adequate notice of the particular infringements at issue. Where it had particularized knowledge, the court found, it had promptly taken the infringing postings down.
In enacting the DMCA, Congress created procedures to facilitate the policing of copyright infringements on the Internet without imposing an undue burden on Internet service providers (ISPs). The procedures are intended to provide specified ISPs with a "safe harbor" from liability for copyright infringement.
In its opening brief, Viacom argues that YouTube intentionally facilitated the copyright infringement and should not be protected by the safe harbor provisions at all. According to Viacom, to retain the safe harbor protection under § 512(c), YouTube had an obligation to take reasonable steps to prevent further infringement and should have used tools it had at its disposal to curtail the infringement it had fostered. Viacom asserts that YouTube was aware of massive infringement, “welcomed” the infringement and sought to expand and profit from it. It cites internal email in which YouTube acknowledged, for example, that that if it “just remove[d] the obviously copyright infringing stuff,” traffic would “go from 100,000 views a day down to about 20,000 views or maybe even lower.” It also argues that the lower court erred in not finding that the evidence it presented sufficiently established that YouTube knew of the infringing activity on its site and thus had "aware[ness] of facts or circumstances from which infringing activity is apparent” taking it out of the safe harbor provisions.
On the other hand, YouTube will likely argue in response that the lower court correctly applied the DMCA's safe harbor provisions and that it did not have “actual knowledge” of the specific acts of infringement at issue and that its "generalized knowledge" was insufficient to disqualify it for those protections.
One interesting issue is whether the Supreme Court's decision in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) applies or is even instructive with respect to Viacom's argument that YouTube should at least be held secondarily liable for copyright infringement for its encouragement of infringing activity. The lower court rejected the Grokster argument and found that the case was inapplicable because it did not involve ISPs and was based on common law rather than the statutes at issue in this case. However, there are important parallels between the two cases: each case attempts to address secondary liability issues and each is concerned with striking an appropriate balance between promoting innovation and protecting copyright rights. Thus, the the Second Circuit may find the Supreme Court's guidance in Grokster instructive on the secondary liability issues before it.
The lower court's opinion and order in, Viacom International Inc., et al. v. YouTube, Inc., et al., Case No. 07 Civ. 2103 (June 23, 2010) is available here. Viacom's opening brief in its appeal, now pending in the U.S. Court of Appeals for the Second Circuit as Case No. 10-3270, is available here.
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