April 18, 2013 | By corynne mcsherry

Another Legal Victory for YouTube: When Will Viacom Wise Up and Walk Away?

A federal judge handed Google/YouTube another victory yesterday in the long-running Viacom v. YouTube lawsuit. The same judge had ruled decisively against Viacom back in 2010, finding that YouTube was protected from copyright infringement liability for the activities of its users by the safe harbors of Section 512 of the Digital Millennium Copyright Act.  

Just over a year ago, the Second Circuit Court of Appeals revived the entertainment giant’s lawsuit – but simultaneously eviscerated most of Viacom's legal theories. The appellate court found that YouTube was protected from liability except where the company actually knew of (or was willfully blind to) specific instances of infringement of material at issue in the case, or facts or circumstances indicating such specific infringement. In a bit of a technical point, the court also said it was unclear whether syndicating clips might be the kind of activity contemplated by the safe harbors. Finally, the court suggested that YouTube might be liable if it had exerted “substantial influence” on the infringing activities of users. The court then sent the case back to the district court for a determination on the unresolved issues. 

That determination has been made and it is a resounding win for YouTube.

With respect to YouTube's knowledge of infringement, the district court asked the parties to provide evidence of YouTube's knowledge with respect to the clips at issue. YouTube submitted a list of 63,060 clips, said it never received notice that those clips were infringing, and challenged Viacom to explain how notice was given.

Viacom couldn't meet that burden, so it tried another approach.  It claimed that since the DMCA safe harbors offer an "affirmative defense" to an infringement allegation (meaning, procedurally, a defendant would normally invoke them in response to a lawsuit or other threat), and it is normally a defendant's burden to prove that kind of defense, YouTube had to prove its lack of knowledge.

The court dismissed the Viacom's legal theory as "extravagant," "ingenious," and "anachronistic." Under the DMCA scheme,  the copyright owner has the burden of identifying what is infringing, and Viacom had offered no legal basis to shift that burden to YouTube. Score 1 for YouTube.

Alternatively, Viacom argued that YouTube had instead been willfully blind to the infringing activity. But Viacom simply couldn't muster the evidence for this theory either: 

The examples proffered by [Viacom] (to which they claim YouTube was willful blind) give at most information that infringements were occurring with particular works, and occasional indications of promising areas to locate and remove them. The specific locations of infringements are not supplied: at most, an area of search is identified, YouTube is left to find the infringing clip.

So that left yet another theory: that YouTube lost safe harbor protection because it had financially benefitted from conduct it had the right and ability to control. To prove that, Viacom had to show YouTube had influenced or participated in infringing activity. Viacom couldn't.

There is no evidence that that YouTube induced its users to submit infringing videos, provided its users with detailed instructions about what content to upload or edited their content, prescreened submissions for quality, steered users to infringing videos, or otherwise interacted with infringing users to a point where it might be said to participated in their infringing activity.

The court had a bit more clean-up to do regarding a narrow question of whether "syndicating" clips fell within the protections of the DMCA safe harbors. The court concluded that it did.

Game over for Viacom, at least for now.

Because here's the bad news: the legacy content industries just don't know when to say when. Witness Universal's ill-advised decision to petition the Ninth Circuit to revisit (again) its decision in another case concerning the DMCA safe harbors, UMG v. Veoh. Viacom will doubtless appeal this ruling, dragging both parties back to the Second Circuit. Let's hope that court will finally put paid to this litigation.  It's time for everyone to move on and invest in new and viable business models rather than legal fees.

Update: Viacom has said that it will appeal.  Guess the company is still more interested in litigating than innovating. 


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