Update - Filtering the Internet to Prevent Copyright Infringement


This article updates my previous articles on "Filtering the Internet to Prevent Copyright Infringement" to reflect the June 2010 federal district court decision in Viacom v. YouTube (“Viacom”), a watershed development in this area. The decision is on appeal to the Second Circuit.

The Viacom decision directly confronts the uncertain intersection between the Digital Millenium Copyright Act's safe harbor provisions and the common law of contributory and vicarious liability for copyright infringement. In Viacom, the District Court found YouTube immune from liability, even in the face of Viacom’s claims that YouTube was liable based on common law principles of contributory or vicarious liability.

If the decision is upheld on appeal, it would add substantial certainty to the law of ISP safe harbors in this era of growing innovation on the Internet. Affirmation would apply a rigid rule that if an ISP complies with notice and take-down, it is not subject to vicarious or contributory liability unless it does much more to facilitate or promote infringement than simply providing a hosting structure for third-party generated content.

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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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