Viacom v. YouTube Update: What Does It Mean For Me?

by Gray Reed & McGraw
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The district court in New York dismissed Viacom’s lawsuit against YouTube yesterday.  Yes, this case has been on appeal and remanded several times.  You should read the details on Professor Goldman’s Technology and Marketing Law Blog here.  Viacom may appeal the  Second Circuit Court of Appeals once again, so it may not be over.

To summarize the decision, the district court ruled that unless Viacom can prove YouTube has actual knowledge that each uploaded clip is a copyright violation, Google is entitled to the immunity granted it by the Digital Millennium Copyright Act, the DMCA.

DMCA BASICS

The DMCA provides web hosts and internet service providers a “safe harbor” from copyright infringement claims resulting from content provided from others if certain procedures are followed. If the safe harbor qualifications are met, only the customer or user can be liable and not the actual website or ISP, i.e., YouTube.

To qualify for the safe harbor protection, the site must: (1) notify the customers of its policy; (2) follow proper notice and takedown procedures; (3) designate a copyright agent with the U.S. Copyright Office; (4) not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network.

Summary of the Ruling

This case has centered on the last prong.  Viacom has been arguing YouTube generally knows copyrighted videos are uploaded and has benefited from a willful blindness to the infringement.  The court ruled there needs to be evidence that YouTube knows each and every individual clip is copyrighted at the time it us uploaded rather than knowing that it generally happens.  Specifically, the court wrote:

knowledge of the prevalence of infringing activity, and welcoming it, does not itself forfeit the safe harbor. To forfeit that, the provider must influence or participate in the infringement.

Viacom admitted there is no technology in place that would give YouTube actual knowledge regarding the copyrights attached to each individual video at the time it is uploaded.

What does it mean?

This ruling confirms the burden to track copyrighted material is on the copyright owner and not the website.  If you have a website that takes user-generated content, you should feel better.  Even if you know you some of your users often upload copyrighted materials, you will not be deemed to “have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network” until the copyright owner tell you.

As long as you satisfy the other safe harbor requirements, you should be safe.  Viacom may appeal and try to resuscitate the “willful blindness” argument.  There is also some concern that the words “influence” or “participate” in infringement may leave open a hole for copyright owners to go after certain websites more active in seeking and pushing the content.

[Update 4-22-13]  I should have put this ruling in context with the recent Ninth Circuit ruling in UMG v. Veoh. The Ninth Circuit originally ruled in favor of Veoh, the online video site against the record company UMG, but decided to revisit the decision in the wake of the Second Circuit Court of Appeals’ decision in Viacom which took a slightly more narrow view of the immunity protections.  Last month, the Ninth Circuit ruled again in favor of Veoh affirming a broad support for the initial free flow of information on the Internet.  The Ninth Circuit detailed, however, the precautions Veoh used to prevent the initial downloading of copyrighted materials which raises the questions of whether there is a requirement to employ reasonably available methods to prevent the uploading of copyrighted material in the first place.  You can read more details in this post from Kimberly Herman of Sullivan & Worcester.

In the interest of levity and to show how long this case has been going, enjoy this clip from the Daily Show in 2007 that discussed the case.

Click here to view video.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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