March 18, 2010 | By Fred von Lohmann

Viacom Makes Its Case Against Yesterday's YouTube

Today, after three years of litigation, the Viacom v. YouTube combatants finally publicly released their briefs (Viacom's; YouTube's; Class Action Plaintiffs') in what most expect to be the main event in the case, namely, cross-motions for summary judgment (for the non-lawyers: a summary judgment motion asks the court to rule that the case is such a slam dunk in your favor that no trial is necessary).

One surprise from Viacom is a concession that it basically has no beef with YouTube as it has been run since May 2008: "[W]e do not ask the Court to address potential liability for post-May 2008 infringement in this motion and, if Viacom's summary judgment motion is granted, do not intend to do so at trial." What happened in May 2008? That would be when YouTube launched its Content ID system, enabling copyright owners to "claim" their content and decide whether it will be blocked or monetized on YouTube.

In other words, this case isn't really about YouTube (at least YouTube circa 2010). It's about Viacom's effort to get the court to re-write the DMCA safe harbors to require everyone else to implement (and pay for) copyright filtering. If Viacom succeeds, it would radically change the innovation environment for all Internet companies that depend on the DMCA safe harbors.

Why are the DMCA safe harbors so important? YouTube says it best:

Congress laid the legal foundation for the modern Internet era when it enacted the DMCA in 1998, protecting online services from liability for copyright infringement claims based on their users’ actions. Congress recognized that robust online communications would be chilled if service providers faced unlimited damages claims based on material that their users posted or transmitted. The DMCA thus created a set of “safe harbors” immunizing service providers who respond properly to copyright holders’ notifications of alleged infringement. That policy choice enabled the evolution of a new generation of websites devoted to user­ generated content, letting individuals the world over express themselves and form new communities through blog posts, social networks, photography, and video.

YouTube points out that it follows all the requirements of the DMCA safe harbor for "hosting" providers—it has a Copyright Agent, it terminates repeat infringers, and it responds to DMCA takedown notices, among other things. (Several rulings have previously confirmed that video hosting sites like YouTube can qualify for the safe harbors.)

Rather than focusing on any of these points, Viacom instead launches a broad attack on the applicability of the safe harbors to any secondary liability claims (contributory infringement, inducement, or vicarious liability):

"Thus, the preconditions of the DMCA immunity reflect and largely track traditional liability standards. If Defendants are liable for infringement under these long established standards, they thereby also lose resort to the DMCA."

The trouble with that argument is that it's precisely the opposite of what Congress said it meant to accomplish:

"The [DMCA safe harbors] protect qualifying service providers from liability for all monetary relief for direct, vicarious and contributory infringement."

(Conference Committee Report, H. Rep. 105-796 at page 73, the very last word from Congress on what they meant to be doing with the statutory language that became law.)

So what Viacom is asking for here is a radical re-write of the DMCA that, if accepted, would put all kinds of online service providers at risk of huge statutory damages for copyright infringement. Is eBay used to commit copyright infringement every day by some users? Sure. Do people use Microsoft's Bing to find infringing materials? Check. Do online lockering services get used to store infringing materials? Do users send infringing email attachments? How about the "send file" features of every instant messaging system? The only reason these (and many other) online services exist is because the DMCA safe harbors give them rules to follow that are much clearer than the murky standards for "secondary liability." If Viacom is right, then there are no clear rules to follow, except "beg permission from every copyright owner first." And that's a rule that would hobble innovation and competition online.

Fortunately, most of Viacom's arguments are simply a rehash of arguments that have already been rejected by other courts. Here's hoping that this court is not fooled.


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