The real importance of the revived Viacom-YouTube case
The case is a modest win for content-owners. But it also fiddles with bedrock definitions that determine the outcome of a crucial recurring question: When are companies liable for their users' copyright infringement?
Yesterday’s federal appeals court ruling, reinstating Viacom’s 2007 copyright lawsuit against Google’s YouTube, may be of greater importance to the nation’s technology and media lawyers than to the parties in the suit.
Viacom (VIA) and YouTube themselves have been peacefully coexisting fairly well since 2008, when YouTube initiated its Content ID filtering program, which Viacom finds satisfactory. (Earlier this week Viacom’s Paramount unit and YouTube announced a deal to rent Paramount movies from the site.) Their dispute is backward looking and finite.
Nevertheless, the decision by the U.S. Court of Appeals for the Second Circuit is of tremendous ongoing interest to the tech and content industries because it fiddles with bedrock definitions that determine the outcome of a crucial recurring question in our Web 2.0 world: When are Internet companies liable for their users’ online copyright infringing activities?
The court’s puzzling, gnarly, 39-page answer to that question, written by Judge Jose Cabranes, will certainly make lawyers earn their fees. What it gives with the right hand, it seems to take away with the left. It will give each side both ammunition and headaches in current and future litigation over such controversial businesses as cyberlockers, like Hotfile.com and RapidShare, which are hotbeds of infringing file-sharing.
Despite the ambiguity, though, the ruling clearly nudges the lines of demarcation modestly in the direction content-owners had hoped. It allows Viacom’s suit against YouTube to go forward “at least with respect to a handful of specific clips” for which Viacom was able to show (mainly through internal YouTube emails) highly specific knowledge of infringement on YouTube’s part. The ruling also reinstates a related class-action copyright suit against YouTube, whose representative plaintiffs include the Football Association Premier League (an English soccer organization), the French Tennis Federation, and a number of music publishers. Those plaintiffs seek damages for ongoing alleged copyright infringement on the site.
In brief statements, both Viacom and YouTube maintained that the wording of the court’s ruling amounted to a victory for it. According to Viacom, “The Court delivered a definitive, common sense message — intentionally ignoring theft is not protected by the law.” YouTube countered: “All that is left of the Viacom lawsuit . . . is a dispute over a tiny percentage of videos long ago removed. . . . Nothing in this decision impacts the way YouTube is operating.”
The ruling’s greatest contribution might be its conclusion that site-owners’ “willful blindness” to users’ infringing activity can be deemed to be “knowledge” on their part, potentially disqualifying them from the protections of the safe harbor. (Explicit recognition of the “willful blindness” principle had been proposed in the recent Stop Online Piracy Act bill, or SOPA — which was dropped after spectacular Internet protests in January — and had been one of the hot-button issues that had alarmed tech lawyers and digital rights advocates.)
Viacom’s case arises from the early history of YouTube, and illustrates well the temptations startup web businesses may have to turn a blind eye to users’ copyright infringement, at least while building scale and audience.
|posted on||April 8, 2012|
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