The District Court judge held that YouTube could not be liable to Viacom for copyright infringement because Viacom could not demonstrate that YouTube had “actual notice” of copyright infringement as required by the Digital Millennium Copyright Act (DMCA).
Viacom has vowed to appeal the ruling.
Disclaimer: the author submitted an amicus brief in support of YouTube in Viacom’s Second Circuit appeal.
In cases of Internet copyright infringement where you’re dealing with sites hosting user-generated content, the Digital Millennium Copyright Act is law. The DMCA shields websites (like YouTube and Vimeo) and Internet service providers (like Comcast, FIOS, and Verizon) who host infringing content, so long as they remove the infringing content when they are given DMCA takedown notices from the owners of the copyright. When a copyright holder is aware that a site is hosting infringing content, it can assert that it owns the copyright and that it should be removed from the site. This provides “actual notice” to the website/host, who then must take down the infringing content.
Related: What is the DMCA?
History of Viacom v. YouTube
In 2007, shortly after Google purchased YouTube, Viacom brought suit against YouTube for copyright infringement. In the complaint, Viacom argued that YouTube infringed Viacom’s copyrights by hosting infringing content uploaded by other users, and, that the YouTube founders uploaded infringing content.
YouTube filed for summary judgment, arguing that the DMCA shields YouTube in cases exactly like this, and that Viacom should not be able to recover damages because YouTube has complied with all takedown requests. Viacom also filed for summary judgment, arguing that YouTube should not have been able to hide behind the DMCA where YouTube purposefully made itself “willfully blind” to the rampant copyright infringement going on at YouTube.com and chose to do nothing about it.
In its opposition to YouTube’s motion for summary judgment, Viacom argued that YouTube existed for the purpose of hosting infringing content, much like Grokster before it. In Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 545 U.S. 913 (2005), the Supreme Court held that Grokster was liable for the copyright infringement of its users because Grokster existed solely for the purpose of copyright infringement.
The court ruled in favor of YouTube, granting them summary judgment. Viacom appealed.
The Second Circuit Court of Appeals, the judge sent the case back to the District Court, holding that a jury could find that YouTube had “knowledge or awareness” of copyright infringement and was “willfully blind.”
The Court’s Latest Ruling
Back in the District Court, the court asked Viacom to demonstrate, as per the DMCA, specifically, where YouTube had “knowledge or awareness” or how it was “willfully blind.” Viacom argued that it was impossible for Viacom to demonstrate that YouTube knew specific clips were infringing in the volumes of case materials.
Yesterday, the court granted summary judgment for YouTube in a 24-page opinion. The court noted that, Viacom had admitted, “. . . that Viacom has failed to come forward with evidence establishing YouTube’s knowledge of specific clips-in-suit.” Viacom argued that the burden of proving notice wasn’t on Viacom, but on YouTube. The court didn’t buy it, saying that argument was “an anachronistic, pre-Digital Millennium Copyright Act (DMCA), concept” and that Congress intended the DMCA burden to be on the plaintiff.
While Viacom argued that a jury could have found YouTube liable, the court noted that, where neither side’s lawyers could even find specific instances of knowledge of infringement by YouTube in huge volumes of material, where it was their job to do so, a jury could not either.
The court also found that YouTube was not “willfully blind” because there were no specific instances that Viacom could prove and that the burden wasn’t on YouTube to look for infringement. “YouTube’s decisions to restrict its monitoring efforts to certain groups on infringing clips, like its decisions to ‘restrict access to its proprietary search mechanisms,’ do not exclude it from the safe harbor, regardless of their motivations.”
So at this point is the case over? Viacom lost at the district court on summary judgment, had the Second Circuit vacate the decision, then send it back, only to lose again at the district court on summary judgment.
Viacom has vowed to appeal, so we wait to see how the Second Circuit rules on this one.