Courthouse of the Southern District of New York in Manhattan (photo by EEJ)
YouTube has triumphed in a grand copyright battle against media companies and content owners led by Viacom. The case is important not just for YouTube, but for all websites with user-generated content, including blogs allowing automatically posted comments.
Judge Louis L. Stanton of the U.S. District Court for the Southern District of New York, granted Google’s motion for summary judgment against Viacom for all claims for direct and secondary copyright infringement. The opinion is available as an image-based pdf and in an html document format. Google, which owns YouTube, has posted the news of its victory on the Official Google Blog.
The Digital Millennium Copyright Act says that an internet service provider with “actual knowledge” of infringement loses the protection of the DMCA’s safe-harbor provisions. That makes the case seem pretty easy for Viacom. Everyone knows that YouTube hosts tons of infringing video clips. And of course Google knows it too. So doesn’t that mean that it’s a slam dunk and Viacom should win? Nope.
The court said, “Mere knowledge of prevalence of such activity in general is not enough.” An ISP’s immunity evaporates only when it has “knowledge of specific and identifiable infringements of particular individual items.”
The court explained what was at stake in the big picture: “To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.”
That means that going forward, the Viacom and other content providers, if they want their content scrubbed from YouTube, will have to do the policing themselves, sending DMCA take-down notices, at which point it will be YouTube’s responsibility to remove it.
The court continued, “The DMCA is explicit: it shall not be construed to condition ‘safe harbor’ protection on ‘a service provider monitoring its service or affirmatively seeking facts indicating infringing activity….’ Indeed, the present case shows that the DMCA notification regime works efficiently: when Viacom over a period of months accumulated some 100,000 videos and then sent one mass take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them.” (citations omitted)
Viacom has vowed to appeal.