Federal Judge Reads DMCA to Favor Google, Service Providers

In a decision that could have sweeping implications for copyright law, a federal judge in New York ruled on June 23, 2010 in favor of Google, which owns YouTube, dismissing a $1 billion lawsuit in which the film and television company Viacom alleged widespread copyright infringement by the popular video-sharing website.

The suit, filed in 2007 in the U.S. District Court for the Southern District of New York, accused Google of copyright infringement, citing tens of thousands of Viacom-produced videos that had been uploaded to YouTube, according to a June 23 story in The New York Times. Viacom's media holdings include cable networks MTV, VH1, Nickelodeon, Comedy Central, and movie studios Paramount Pictures and Dreamworks Pictures. (For more on the suit, see "Internet Updates: Popular Web Site YouTube Faces Challenges in U.S. and Abroad," in the Spring 2007 Silha Bulletin.) The lawsuit accused YouTube of "brazen disregard of the intellectual property laws," but Google maintained that YouTube was protected under the 1998 Digital Millennium Copyright Act's (DMCA) "safe harbor" provision, found at 17 U.S.C. § 512, which protects Internet service providers from liability when copyrighted material is uploaded by users, so long as the provider moves swiftly to remove contested materials when notified of the infringement. Viacom argued that Google's claim of protection under the "safe harbor" provision amounted to shifting the burden of identifying videos that violate copyright laws onto the victims of copyright infringement.

Moreover, Viacom argued that YouTube's implementation of systems designed to flag content that violates copyright only helped prove that the website could have done more to keep copyrighted material off its site, according to a June 24 Associated Press (AP) story. An early version of the flagging system was established in 2005, before the sale of YouTube to Google. After the sale, the system evolved from being community driven, with users identifying potentially infringing material, to a more technologically sophisticated system, dubbed "Content ID," which enabled the owners of copyrighted material to provide YouTube with reference files of material they own. YouTube then uses the reference files to filter and track illegal uploads to the website.

In his 30-page opinion granting summary judgment for Google, U.S. District Judge Louis Stanton wrote that although a jury could find that YouTube and Google had "general" awareness of copyright infringement, the companies could not be held liable for "knowledge of specific and identifiable infringements of individual items," adding that when YouTube received "specific notice that a particular item infringed a copyright, they swiftly removed it."
Viacom International, Inc. v. YouTube, Inc., 2010 U.S. Dist. LEXIS 62829 (S.D.N.Y. June 23, 2010)

In the ruling, Stanton wrote that Google successfully stayed within the bounds of the DMCA's "safe harbor" provision, identifying several key criteria of the provision that Google met. Although Viacom showed that Google was aware of YouTube's high volume of copyright-infringing content by presenting internal e-mails from Google that acknowledged the existence of the material, Stanton interpreted the DMCA to mean that, because of the sheer amount of material posted to YouTube, Google could only reasonably be expected to identify instances of copyright infringement with the assistance of the copyright holders—in this case, Viacom. Stanton wrote that Google also succeeded in promptly removing clips that had been identified as infringing, and banning users who repeatedly uploaded copyrighted material.

Some commentators hailed the decision, which represents one of the highest-profile judicial interpretations of the DMCA, as a significant milestone that could have major implications for companies that host user-generated content, like YouTube, and those that produce their own content. Ian Ballon, a lawyer at Greenberg Traurig LLP, who represents technology and entertainment companies, said in a June 22 Wall Street Journal article that the decision "drew a distinction between pirate sites that have been held liable for inducing people to infringe on copyright and legitimate service providers" like YouTube.

Google called the decision a victory "for the billions of people around the world who use the web to communicate and share experiences," according to a June 23 story in The Wall Street Journal. Kent Walker, Google's general counsel, said in a June 23 interview with The New York Times that the decision "will let a whole new generation of creators and artists share their work online," calling the decision "an affirmation of the emerging legal framework" that "ratifies the rules we have all been living under." In the June 24 AP story, David Sohn, a lawyer for the Center for Democracy and Technology, said, "Without this decision, user-generated content would dry up and the Internet would cease to be a participatory medium."

Others, however, had reservations about the precedent set by the decision. In a June 28 editorial, the San Francisco Chronicle criticized the ruling, arguing that stronger copyright protections are needed for creators of content in a digital age. "We can't expect people to create things for free," the editorial said, "unless we believe that the only people in our society who can be creative are already rich."

Viacom's lawyers said they plan to appeal the ruling. Michael Fricklas, Viacom's general counsel, wrote in a June 23 blog post on Viacom's website that copyright protection is essential to the survival of creative industry, alleging that YouTube built its fortune and success on pirated material before the site was sold to Google for $1.65 billion in 2006. "YouTube and Google stole hundreds of thousands of video clips from artists and content creators, including Viacom, building a substantial business that was sold for billions of dollars," Fricklas said in the June 23 story in The New York Times. In a statement to the AP on June 24, Fricklas added that "it is and should be illegal for companies to build their businesses with creative material they have stolen from others."

- Ruth DeFoster
Silha Research Assistant



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This page contains a single entry by cla published on September 10, 2010 5:02 PM.

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