Ground Report

by Matthew L. Schafer

Just over three years after Viacom International filed a complaint against Youtube, Inc. for allegedly infringing on Viacom’s copyrighted material, Youtube was handed a victory by a federal court.

In the Opinion and Order of the United States District Court for the Southern District of New York, District Judge Louis Stanton wrote, “[Youtube] qualifies for [safe-harbor] protection, against all of plaintiffs’ claims for… copyright infringement.”

Viacom was seeking $1 billion in damages, before Hon. Stanton granted Youtube’s request for summary judgement, which will prevent the case from going to trial.

At issue in the case was Youtube’s pre-2008 policy that required copyright holders to inform Youtube about specific infringements before Youtube would remove the content.  In it’s complaint, Viacom argued that Youtube has “sought their fortunes by brazenly exploiting the infringing potential of digital technology.”

Youtube, however, argued that it was protected under the Digital Millenium Copyright Act of 1998′s safe harbor laws.  The safe harbor laws prevent a service provider (like Youtube) from being held liable for content that presides on its network as long as the service provider:

(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

While Viacom showed that Youtube executives had knowledge of copyright violations on their website, Hon. Stanton concluded that Youtube must have knowledge of specific–not general–violations of copyright in order to be held liable.  In a statement, Viacom responded to the decision, writing, “It is and should be illegal for companies to build their businesses with creative material they have stolen from others.”

Youtube, however, applauded the ruling, writing, “[Youtube] is excited about this decision and looks forward to renewing our focus on supporting the incredible variety of ideas and expression… on Youtube.”  Viacom plans on appealing the ruling.

The case was marked by several embarrassing moments for both sides.  In March of this year, Youtube revealed that sosme of the videos Viacom was suing over were uploaded by Viacom itself, and suggested that Viacom used the website for publicity only to demand reparations.
At the same time, Viacom released emails gathered as part of their ongoing investigation that quotes Youtube founder Steve Chen writing, “If we remove the [copyrighted material], site traffic and virality will drop to maybe 20%.” Youtube argued that Viacom “misconstrued isolated lines from a handful of emails.”

In spite of the embarrassing moments, Youtube is walking away with a major victory and has overhauled its intellectual property policy since the complaint.  Open Internet organizations are applauding the decision as an affirmation of the safe harbor protections.

“Viacom’s lawsuit was nothing less than a radical attempt to roll back the crucial “safe harbor” provision of the Digital Millennium Copyright Act (DMCA),” The Center for Democracy and Technology, a non-profit public interest organization, said. “Safe harbor is what has enabled the explosive growth of innovative online services and platforms that empower Internet users”

Looking forward, Youtube’s current intellecutal propoerty policy is causing concern among some, who argue that if a copyrighted video that has been used as a foundation for transformative works is petitioned for removal, Youtube will take it down.

“A serious concern of mine… is the possibility that an author of a work, like Viacom, could claim that a video uploaded to Youtube is infringing, and Youtube must take it down,” argued Jasmine McNealy, an Adjunct Professor at the Paul M. Hebert Law Center who specializes in intellectual property law. “This concerns me not because I think there is no copyright infringement, but because videos that are valid fair uses of the author’s work could be taken down.”

For more information on how copyright affects you, visit the U.S. Copyright Office website.