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.

When I wrote about the trial judge’s remittitur order in the Jamie Thomas case last week, I didn’t mention that a legal aspect of remittitur is that the defendant may accept it, or reject it and demand a new trial. I now understand that the defendant in this case has not accepted the judge’s remittitur, and has informed the court that she elects instead to proceed with a new trial. This would be the third trial in this case, since the first was set aside by the judge following verdict.  Obviously, this decision is a matter of principle, not finances, since the cost of the new trial alone will likely exceed the damages offered by the judge. However, this case, like the Tenenbaum case in Boston, is all about principle, and very little about hard, cold cash.

There’s an interesting discussion of remittitur on the Copyrights and Campaigns web site, here.

Out of more than 30,000 cases filed against downloaders by the record companies only two end-user download cases have gone to trial and judgment: the Tenenbaum case in Boston, and the case against Jammie Thomas-Rassett in Minnesota.

In the second case, the jury awarded the copyright owners $2 million for downloading (and allegedly distributing) 24 songs.  The federal judge to whom the case is assigned has now lowered that amount to $2,250 per song (the legal term of the judge’s action is “remittatur”).

Some quotes from the Thomas-Rassett January 22, 2010 decision:

After long and careful deliberation, the Court . . . remits the damages award to $2,250 per song – three times the statutory minimum. The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music. . . . although Plaintiffs were not required to prove their actual damages, statutory damages must still bear some relation to actual damages.

. . .  This reduced award is significant and harsh. It is a higher
award than the Court might have chosen to impose in its sole discretion, but the decision was not entrusted to this Court.

. . . Thomas‐Rasset argues that the ratio of the statutory damages award to actual damages in this case, when measured in songs, is 1:62,015. She bases this calculations on a cost of $1.29 per song online.

. . .  Thomas‐Rasset asserts that, at most, she was a single mother who merely downloaded and shared music when she had already lawfully bought CDs of much of that music and had no commercial motive to infringe.

. . .  The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music.

. . .  The Court will not substitute its judgment for the judgment of the jury. Rather, it will remit the award to the maximum amount sustainable by the record, so that the statutory damages award is no longer shocking or monstrous.

It will be interesting to see if this decision has any impact on Judge Nancy Gertner, the federal judge assigned to the Tenenbaum case in Boston.  In that case, the jury awarded $22,500 for each work infringed, and a motion for remittitur is pending.

Here is a link to the full opinion in Thomas-Rasset:

Thomas-Rasset Remittatur Order

One of the first open source copyright licenses:

This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.

Said to be Woody Guthrie’s copyright notice.

Final judgment in Sony v. Tenenbaum entered by Judge Nancy Gertner today.  The 30 day appeal clock starts to run.  Should be interesting to see what the First Circuit does with this one, although I suspect that the betting is heavy in favor of quick affirmance.

A few choice quotes from Judge Gertner’s opinion, which is provided in full below on scribd.com.

“the Court, deeply concerned by the rash of file-sharing lawsuits, the imbalance of resources between the parties, and the upheaval of norms of behavior brought on by the Internet, did everything in its power to permit Tenebaum to make his best case for fair use.…The Court did what it could to focus the issue, notwithstanding what can only be described as a truly chaotic defense.”

…

Tenenbaum “tailor[ed] his fair use defense to suggest a modest exception to copyright protections,” he “mounted a broadside attack that would excuse all file sharing for private enjoyment. It is a version of fair use so broad that it would swallow the copyright protections that Congress created, defying both statute and precedent.”

…

“As this Court has previously noted, it is very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written. It urges – no implores – Congress to amend the statute to reflect the realities of file sharing. There is something wrong with a law that routinely threatens teenagers and students with astronomical penalties for an activity whose implications they may not have fully understood. The injury to the copyright holder may be real, and even substantial, but, under the statute, the record companies do not even have to prove actual damage. “Repeatedly, as new developments have occurred in this country, it has been Congress that has fashioned the new rules that new technology made necessary.”  … It is a responsibility that Congress should not take lightly in the face of this litigation and the thousands of suits like it.”

The full opinion, below.

Tenenbaum Final Judgment

And Judge Gertner’s opinion rejecting Joel Tenenbaum’s fair use defense:

Sony v. Tenenbaum Fair Use Decision

The First Circuit’s decision upholding the RIAA’s challenge to Judge Gertner’s decision to permit webcasting of a motion hearing in the RIAA v. Tenenbaum case was issued on April 16, 2009, very shortly after oral argument.

The First Circuit, interpreting a D. Mass. Local Rule, held that U.S. District Judge Nancy Gertner’s interpretation of the local rule concerning photographing recording and broadcasting of courtroom proceedings was “palpably incorrect”.

This result is quite disappointing for many people who had hoped that the First Circuit would hold that Massachusetts District Court Judges have have the discretion to webcast court proceedings in their courtrooms, and that this would be a first step toward allowing the public to view federal district court civil proceedings. The decision will, many hope, lead to a change in the pre-Internet age Rule that was found to prohibit the webcast.

Here is the First Circuit’s recent decision upholding a preliminary injunction in a copyright case  out of D. Puerto Rico.  The sole issue on appeal was the holding on substantial similarity.  The products were stuffed animals, specifically, frogs.  Or, more specifically, the Puerto Rican tree frog, the Coqui.   I’ve tried to find a picture of the defendant’s stuffed animal frog  with no luck.

Link: Coquico, Inc. v. Rodriguez-Miranda.

Massachusetts U.S. District Court Judge Nancy Gertner issued an order permitting the webcast of a scheduled in-court motion hearing in the RIAA/Tenenbaumcopyright downloading case.  The RIAA challenged the order, arguing that a federal rule prohibits the webcast.  Here is yesterday’s audio of the First Circuit oral argument, with Harvard Law Prof. Charles Nesson arguing for Tenenbaum.

Great article by Steven Seidenberg in the February 2009 ABA Journal on the legal tensions between user-generated content sites (UGC, in the lingo) and the content owners under the “notice and take down” regime established by the DMCA.

Interesting fact from the article: On YouTube alone ten hours of video content are put online every minute of every day, more than 250,000 clips per day.

Link to article.

Cases and sites mentioned in the article:

Lenz v. Universal Music Corp

Io Group, Inc. v. Veoh Networks, Inc.

Viacom page on the YouTube case

As everyone in the copyright law community knows by now, Harvard Law School Professor Charles Nesson, and a team of HLS students, are defending Joel Tenenbaum in an RIAA action. Nesson’s primary argument is that the copyright statute’s statutory (aka punitive) damages of as much as $150,000 per infringement is unconstitutional, least as applied to Tenenbaum who downloaded seven songs for personal use, not profit. Over $1 million in damages ($150,000 x 7) seems a bit much for such a violation, and Nesson argues that punitive damages of this magnitiude are unconstitutional.

Nesson is courteously interviewed by Professor Doug Lichtman on the Intellectual Property Colloquium podcast here.

Apart from the legal issue raised by Professor Nesson, this case has a great deal of humor in it, not the least of which is that Nesson and company are defending Joel Tenenbaum.  This is kind of like picking on a little kid on the playground, who then shows up with The Hulk, who just happens to be his big brother and refuses to go away until he’s fought the bully to the death. Oh, and Nesson’s team is “immortal” for all practical purposes – I suspect there’s nothing that Nesson would like more than to take the constitutional challenge to the Court of Appeals and then the Supreme Court.  I doubt that the RIAA ever expected this, but they can’t exactly back down at this point. I hope to write about this case it in more detail in a future post, and highlight some of the bizarre turns the case has taken with Nesson guiding Tenenbaum’s defense.

A great blog that is following this case in more detail than I could ever have thought possible is Ben Sheffner’s Copyrights and Campaigns.