A US judge has dismissed Viacom’s $1 billion copyright infringement lawsuit against Google and YouTube for the second time in three years, after the case was remanded by the Court of Appeals for the Second Circuit.
Viacom—which owns Paramount film studio and cable networks including MTV—filed a lawsuit in 2007 accusing Google and YouTube of violating its copyright by allowing users to upload unauthorised clips of its films and TV shows.
The case was dismissed by New York district court judge Louis Stanton in 2010, who found in favour of YouTube and said the video sharing site had complied with US copyright law by removing infringing videos when asked to do so.
Stanton also said YouTube and Google are protected by the Digital Millennium Copyright Act’s (DMCA) “safe harbor” provision, which protects Internet service providers from being held liable for infringement committed by users.
Viacom appealed against this decision and the case was referred to the Court of Appeals, which largely upheld it but referred the case back to Stanton after deciding that emails between executives at the company could lead a reasonable jury to find that YouTube was aware of infringing activity on the site, and asked him to consider whether YouTube had engaged in wilful blindness to infringement.
Viacom argued that it should be YouTube’s responsibility to prove a lack of knowledge of infringement, rather than Viacom's to prove it alerted YouTube to infringing material.
But in a decision published on April 18, Stanton dismissed this argument as “extravagant” and based on "an anachronistic, pre-DMCA concept". As more than 24 hours of video content is uploaded to YouTube each minute, Stanton said it would be impossible to be aware of the contents of each clip posted on the site.
He also said YouTube should be protected by the safe harbour because it is not actively involved in the uploading of content. As Viacom did not provide YouTube with the urls for infringing clips, Stanton said there is no evidence to prove YouTube engaged in willful blindness.
In a statement following the decision, Viacom said it plans to file an appeal. “This ruling ignores the opinions of the higher courts and completely disregards the rights of creative artists. We continue to believe that a jury should weigh the facts of this case and the overwhelming evidence that YouTube wilfully infringed on our rights,” it said.
Kent Walker, senior vice president and general counsel at Google, said it was “an important day for the Internet” and a win “not just for YouTube but for the billions of people worldwide who depend on the web to freely exchange ideas and information.”
“In enacting the Digital Millennium Copyright Act, Congress effectively balanced the public interest in free expression with the rights of copyright holders. The court today reaffirmed an established judicial consensus that the DMCA protects web platforms like YouTube that work with rights holders and take appropriate steps to remove user-generated content that rights holders notify them is infringing,” he added.
Annette Hurst, partner at Orrick, Herrington & Sutcliffe LLP, said Judge Stanton’s opinion is “well-reasoned and makes a lot of sense”.
“It is a very practical decision that takes into account the reality of how Internet-based businesses operate, and how courts operate. It is not surprising that Viacom says it will file an appeal, since they have now completely lost the case and that is their only potential avenue to improve the outcome,” she added.
If Viacom does file an appeal, Hurst believes Stanton’s summary judgment will be affirmed “because the appeals court will also recognise that YouTube cannot be expected to “prove a negative.” The statutory scheme puts the burden on the copyright owner to police its content,” she said.
Jenevieve Maerker, an associate at Foley Hoag LLP in Boston, said an appeal could raise the question of “wilful blindness”.
“The Second Circuit left a fairly open question as to what might constitute wilful blindness in the context of the DMCA, which specifically says service providers are not required to monitor or affirmatively seek out infringement, and the district court’s opinion does not do very much to answer it,” she said.
“It’s unclear how much the facts of the case really lend themselves to an answer, but perhaps the appeals court, if given the opportunity, will see something different worth commenting on to elucidate the issue,” she added.
This article was first published on 23 April 2013 in World IP Review
Viacom, Google, YouTube, copyright infringement, safe harbor, DMCA