Decision in Viacom v. YouTube: Dog Bites Man (Mark Cuban was wrong)

by Lee Gesmer on June 25, 2010

Decision in Viacom v. YouTube: Dog Bites Man (Mark Cuban was wrong)

Despite all the hoopla, this week’s copyright decision in Viacom v. YouTube (link on Scribd) was predicatable – a decision in the opposition direction would have been a shocker.  Viacom accused YouTube (owned by Google) of massive copyright infringement.  The court dismissed the case on summary judgment in favor of YouTube.

Of course, there is no question that copyright infringement is taking place on YouTube every instant of the day.  The court noted that video is being uploaded to YouTube at the rate of 24 hours per minute.  My calculator tells me that this is over 12.6 million hours of video per year.  It’s no secret that people are uploading copyright material at a fantastic rate – a search of YouTube will find that almost any popular song can be located.  it’s a simple matter to download the clip (either video of just audio), and share it with friends or on peer-to-peer networks.   YouTube “ground zero” for online copyright infringement.

However, as I’ve noted in the past, the Digital Millenium Copyright Act – the DMCA – is a federal law that protects publishers such as YouTube as long as they follow the DMCA’s “notice and take-down” procedures (aka “whack-a-mole”), which YouTube has faithfully done.  Thus, YouTube was able to claim that it followed “the letter of the law” and therefore its conduct fell within this statutory safe harbor.

Southern District of New York Federal District Court Judge Louis L. Stanton rejected Viacom’s argument that YouTube was aware of, and ignored, massive copyright infringement by YouTube users.  The DMCA, the judge held, does not permit Viacom to establish liability based on “a general awareness that there are infringements.”   The DMCA requires specific knowledge, and when YouTube had that knowledge (usually based on notice from Viacom), it “took down” the copyrighted work.

The atmospherics of the case were also helpful to YouTube.  Unlike music sharing sites like Grokster, which were shown to have been aware of infringement but turned a blind eye to it (See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005)), there were very few “smoking gun” emails uncovered by Viacom in discovery, so YouTube was able to credibly argue that it was not encouraging or turning a blind eye to infringement.

All of this is not to say that Viacom’s equitable argument is without significant force.  YouTube (and other online service providers like it) are aware that their sites are a vehicle for user-uploaded infringements.  The district court observed that Viacom’s submissions were sufficient for a jury to find that the defendants “not only were generally aware of, but welcomed, copyright-infringing material being placed on their website. Such material was attractive to users, whose increased usage enhanced defendants’ income from advertisements ….”

Viacom may be right to question whether this is a proper allocation of responsibility for copyright enforcement. Under the law, the website operator “need not monitor or seek out facts indicating [infringing] activity,” forcing the copyright owner to monitor the site and constantly inform the operator of the location of  infringing works.  If a popular but infringing video is taken down as a result of such a “take down” notice, it may pop-up again moments later after being upload by a different (or even the same) user, forcing another take-down notice – hence the “whack-a-mole” analogy.   Who should carry the burden of policing this behavior?  The DMCA, a statute enacted long before the advent of YouTube, shifts most of this burden to the copyrights owners, in this case Viacom.

Viacom announced that intends to appeal the ruling, but I give it little chance of success.  Perhaps Viacom thinks that if a Court of Appeals affirms the decision it will give Viacom and other right holders some leverage to argue for a legislative change, but I give that little chance of success as well.

Worthy commentary by Eric Goldman, Evan Brown and Larry Downs.

Oh yeah, and the Mark Cuban thing …. here.

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