Legal Commentary

Youtube wins Viacom Lawsuit:

By David Post

Judge Stanton in the SDNY has granted Youtube?s motion for summary judgment in in the long-running copyright infringement lawsuit brought by Viacom (and, in a nice soccer-related twist, The English Football Association?s Premier League was another (losing) plaintiff). [The full text of the decision is here]

The case was/is enormously important ? Youtube was asserting that it was immune under the Digital Millennium Copyright Act (specifically, Sec. 512(c)) from copyright infringement claims arising out of user postings. Sec 512(c) sets up a ?notice-and-takedown? scheme under which website owners are immune from third-party infringements as long as they ?respond expeditiously? when notified of specific infringements by copyright holders. Viacom was relying on a portion of the statutory immunity, which denies the immunity if the website operator has ?actual knowledge that the material or an activity using the material on the system or network is infringing? OR if ?in the absence of such actual knowledge, [it is] aware of facts or circumstances from which infringing activity is apparent . . .? 

The critical question in the case was: given that it is a matter of common knowledge that there?s lots and lots and lots of infringing activity on Youtube, does that mean that ?infringing activity is apparent? and that, accordingly, the 512(c) immunity is unavailable for Youtube? The court ? correctly, in my view ? said no, that?s not what it means. The ?facts and circumstances? to which the statute refers must be of ?specific and identifiable infringements of particular items. Mere knowledge of prevalence of such activity in general is not enough.? Sec. 512, and the other immunities provided in the Act for online conduct, ?place the burden of policing copyright infringement ? identifying the potentially infringing material and adequately documenting infringement ? squarely on the owners of copyright. We decline to shift a substantial burden from the copyright owner to the provider . . .?

One could easily argue that these copyright immunities in the DMCA were a critical feature allowing ?Web 2.0? and ?user-generated content? sites (like Youtube, Facebook, Myspace, and many, many others) to flourish. This opinion (though it will probably be appealed) goes a long way to protecting those sites from further attack by the copyright police. Nice work, Judge Stanton!

[Thanks to Justin Gordon for the pointer]

Full post as published by The Volokh Conspiracy on June 23, 2010 (boomark / email).