On April 18, 2013, the U.S. District Court for the Southern
District of New York again held that YouTube is subject to the safe
harbor provisions of the Digital Millennium Copyright Act as an
internet service provider despite alleged general knowledge of
extensive copyright infringement.
The case was initiated in 2007 by Viacom and others against
YouTube for the alleged hosting of copyright infringing
materials. In 2010, the District Court determined on summary
judgment that YouTube fell within the safe harbor of the DMCA (718
F.Supp.2d 514 (S.D.N.Y. 2010)). That decision was appealed to
the Second Circuit, which vacated the decision and remanded,
focusing on whether there was knowledge of "specific
infringements" rather than generalized knowledge of
infringement. The Second Circuit remanded the case back to the
District Court to determine whether, based on the record, YouTube:
(a) had knowledge or awareness of specific infringements, (b) was
willfully blind to specific infringements, (c) had the "right
and ability" to control the infringing conduct, and (d) stored
any syndicated clips at the direction of users. 676 F.3d 19
(2d Cir. 2012). On all of these issues on remand, Judge Louis
Stanton of the Southern District of New York held for
YouTube.
As to YouTube's knowledge of specific infringements, Viacom
acknowledged that it had not put forth evidence that YouTube had
knowledge of specific clips, but argued that it was not its burden
to do so. Instead, it argued that since the DMCA safe harbor is an
affirmative defense, YouTube had the burden to prove each element
of the defense, including that YouTube did not have knowledge of
the specific clips at issue.
The District Court held that though this argument was
"ingenious," its foundation was an
"anachronistic" and pre-DMCA concept. Judge
Stanton's opinion explained that the DMCA safe harbor provision
was enacted because internet service providers provide a useful
function, but that the volume of works placed through their
services would mean that they could easily "ignorantly"
provide access to infringing material. As such, he explained,
to encourage service providers, the DMCA safe harbor places the
burden on the copyright owner to identify and notify the service
provider of the specific infringing works.
Judge Stanton went on to explain that this system of placing the
burden on the copyright owner and requiring that the copyright
owner notify the service provider of each infringement is
"entirely workable." He noted that the system is
"practicable in practice," pointing to evidence that in
2007, Viacom sent over 100,000 notices to YouTube, which were each
taken down within one business day. However, Viacom and other
copyright owners have argued that being required to send hundreds
of notices per day to YouTube to simply protect their works is not
practicable or workable. Instead, copyright owners argue, it places
an unfair burden and expense that should instead be borne by the
service provider who is aware of the significant volume of
infringement and whose business model they argue encourages
infringement.
Judge Stanton went on to find that YouTube was not willfully blind
despite a large volume of infringing content and memoranda among
executives acknowledging that infringement was on-going. He
held that "nothing in the applicable section of the DMCA shall
be construed to require YouTube's affirmatively seeking facts
indicating infringing activity." As to the remaining
issues of whether YouTube fell within the safe harbor, he again
held for YouTube and went on to state, "[t]he governing
principle must remain clear: knowledge of the prevalence of
infringing activity, and welcoming it, does not itself forfeit the
safe harbor. To forfeit that, the provider must influence or
participate in the infringement."
While this decision is a win for service providers, it will be a
frustrating loss for copyright owners. Viacom has already
indicated that it intends to appeal this decision. Venable
will continue to monitor the case. If you have any questions
regarding copyright infringement, the DMCA or this opinion, please
contact the authors or another member of the
Copyright Group.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.