Guest Post: A quick update on Viacom v. YouTube

On April 18, 2013 a U.S. District Court delivered Google yet another victory in its long running litigation against Viacom over the alleged copyright infringement caused by You-Tube. We have below for our readers an excellent summary of the judgement by Chaitanya from the Stanford Law School, who has previously blogged for us over here and here

A quick update on Viacom v. YouTube

Chaitanya Ramachandran
Image from here
In what is being hailed an a victory for operators of UGC (user-generated content) websites, Judge Louis Stanton of the US District Court for the Southern District of New York recently ruled (opinion available here) in favour of YouTube in the latest round of the long-running Viacom v. YouTube saga. This is Viacom’s second loss in the District Court, following the Court of Appeals for the Second Circuit’s partial reversal and remand (available here) of Judge Stanton’s 2010 grant of summary judgment in favour of YouTube (which we blogged about here).

In his 2010 opinion, Judge Stanton found that the DMCA safe harbour for copyright infringement applied despite YouTube’s general knowledge that users were uploading infringing content, because Viacom couldn’t prove that YouTube had specific knowledge about which clips were infringing. On appeal, the Second Circuit remanded the case to the District Court on the ground that a reasonable jury might have found that YouTube had specific knowledge. On remand, Judge Stanton has again granted summary judgment to YouTube, finding that Viacom had not established either specific knowledge or willful blindness on YouTube’s part (I’ll explain why this is significant shortly).

The District Court decisions seem to be correct; the fundamental compromise achieved by the DMCA safe harbour was that UGC websites would not be required to actively police their services for infringing content as long as they responded swiftly to takedown notices from copyright owners. Viacom’s submissions would defeat this arrangement by reversing the implicit burden of proof – instead of being presumed innocent in the absence of proof of specific knowledge or a “red flag” notice, Viacom wanted YouTube to be presumed guilty in the absence of proof that it did not know the content was infringing. Viacom may have scored an own goal by admitting that it did not have evidence that would “allow a clip-by-clip assessment of actual knowledge”, and it was on the basis of this admission that Judge Stanton (correctly) rejected Viacom’s argument.

But the legal issue that is key to this case is the determination of the standard of scienter required by the DMCA, as the Second Circuit had held on appeal that a showing of “willful blindness” might be an acceptable substitute for a showing of specific knowledge. Judge Stanton artfully evaded applying this standard by deciding that even a showing of “willful blindness” should specifically relate to the infringement of the clips being litigated, thereby effectively applying the statutory standard of specific knowledge. (Note: The statute denies safe harbour protection to websites that are aware of “facts or circumstances from which infringing activity is apparent”, but “willful blindness” seems to be broader than this.)

Even so, Eric Goldman, in an incisive blog post, disapproves of the standard applied by Judge Stanton – to forfeit the safe harbour, the defendant must “influence or participate in the infringement” – as neither term is present in the statute. The objection is that judicial interpretation of the DMCA safe harbours is unnecessarily beginning to add layers of complexity to the statutory language and creating uncertainty about the applicability of the safe harbour. I agree with this observation; while correctly rejecting Viacom’s call for a loosening of the specific knowledge standard, Judge Stanton went too far in the opposite direction by holding that only evidence of affirmative acts by YouTube could establish that it had specific knowledge. I think this muddles the DMCA safe harbour by introducing an element of contributory liability, which is absent from the statute. This point is likely to come up on (the inevitable) appeal.

What is quite incredible about this seemingly never-ending saga is that it relates only to clips uploaded to YouTube before 2008, which is when YouTube implemented its ContentID screening system. It has been five years since then, and in the face of repeated setbacks, it isn’t clear what Viacom is trying to achieve by keeping this case alive. Wouldn’t it make more sense for Viacom to let bygones be bygones and instead be more diligent with its DMCA takedown notices in the future? 
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