Viacom v. Google

December 8, 2010 – Blog Post

On Friday, December 3, Viacom submitted an appeal brief in their copyright suit against Google in the U.S. Court of Appeals for the Second Circuit. The suit concerned user-provided videos on the Google’s YouTube website that Viacom and several other plaintiffs alleged infringed their copyrights and fell outside of the safe harbor provisions of the Digital Millennium Copyright Act (DMCA). To qualify for the DMCA safe harbor provisions in 17 U.S.C. § 512(c), a service provider must lack either actual knowledge of infringing activity on its system or awareness of the facts or circumstances from which infringing activity is apparent, must not receive a financial benefit directly attributable to the activity, and must respond expeditiously to remove or disable access to the alleged infringing material.

The U.S. District Court for the Southern District of New York previously granted summary judgment for Google, ruling that Google’s activities fell under the DMCA’s safe harbor provisions for service providers. In its June 23 opinion and order, the Southern District of New York found that the statute placed the burden of policing copyright infringement on the owners of the copyright, not on those providing an internet service to potential infringers. The district court found that, to disqualify a service provider from the DMCA safe harbor provisions of § 512(c) based on the knowledge element, knowledge of infringement must be specific knowledge of an incident of infringement, not merely general knowledge that infringement may be occurring. The district court also distinguished the case at hand from peer-to-peer file sharing cases, which it said are not covered by the DMCA safe harbor provisions of § 512(c). The district court further found that YouTube was a “service provider” under § 512(c) and that YouTube responded appropriately to requests to remove allegedly copyright-protected material. Thus, the district court granted summary judgment in favor of Google’s YouTube service.

On appeal, Viacom (in its brief signed by former Solicitor General Theodore Olson) argues that YouTube had adequate knowledge and awareness, that YouTube received direct financial benefit from the alleged infringing activities, and that YouTube promoted infringing materials to its viewers. Viacom points to instances where even YouTube internal communications admitted to hosting infringing materials. Viacom then makes a legal argument that “awareness of the facts or circumstances from which infringing activity is apparent” in § 512(c)(1)(A)(ii) does not require item- and location-specific knowledge. YouTube’s solicitation of advertising on its website directly gave YouTube financial benefit from the alleged infringement, Viacom further argues. Viacom also raises the issue of whether safe harbor applies to the type of activities in which YouTube engages, which Viacom says extend beyond mere storage to also include reproduction, performance, licensing, and guiding viewers to videos, including infringing videos. Thus, Viacom argues, YouTube does not qualify for § 512(c) safe harbor and therefore should be held liable for copyright infringement.

The American Intellectual Property Law Association (AIPLA) also submitted an amicus curiae brief in support of neither party on Friday, December 3, arguing that the district court erred in requiring, to deny a service provider the DMCA safe harbor, too great a degree of awareness of the facts or circumstances from which infringing activity is apparent.

Judicial interpretation of what constitutes “aware[ness] of facts or circumstances from which infringing activity is apparent” can greatly affect the burdens and costs of user-provided content hosts as well as copyright owners’ control over their content. If courts rule that service providers are within the § 512(c) safe harbor as long as they address allegedly infringing acts of which they specifically know, copyright owners will bear most of the burdens and costs of finding incidents of infringement of their own copyright-protected works. If courts rule that service providers with some less specific awareness of apparently infringing activity can be liable for infringement as outside of § 512(c), websites will ultimately need to bear the burden of screening the content that users post to their websites so as not to host apparently infringing material. While YouTube itself has reportedly started voluntarily identifying potentially-infringing materials, if Viacom prevails, YouTube may still be held liable for not doing so in the past, and other websites with user-provided content may be required to do so in the future.