Intellectual Property Law

Decision in Viacom v. YouTube: Dog Bites Man (p.s. Mark Cuban was wrong)

By Lee Gesmer

Rarely is the outcome in a copyright decision as predictable as this week?s ruling in Viacom v. YouTube (link on Scribd).  Viacom accused YouTube (owned by Google) of massive copyright infringement.  The court dismissed the case in favor of YouTube.

Of course, there is no question that copyright infringement is taking place on YouTube every instant of the day.  The court noted that video is being uploaded to YouTube at the rate of 24 hours per minute.  My calculator tells me that this is over 12.6 million hours of video per year.  It?s no secret that people are uploading copyright material at a fantastic rate ? a search of YouTube will find that almost any popular song can be located.  it?s a simple matter to download the clip (either video of just audio), and share it with friends or on peer-to-peer networks.   In other words, YouTube ground zero for online copyright infringement.

However, as I?ve noted in the past, the Digital Millenium Copyright Act ? the DMCA ? is a federal law that protects publishers such as YouTube as long as they follow the DMCA?s ?notice and take-down? procedures (aka ?whack-a-mole?), which YouTube has faithfully done.  Thus, YouTube was able to claim that it followed ?the letter of the law.?

Southern District of New York Federal District Court Judge Louis L. Stanton rejected Viacom?s argument that YouTube was aware of, and ignored, massive copyright infringement by YouTube users.  The DMCA, the judge held, does not permit Viacom to establish liability based on ?a general awareness that there are infringements.?   The DMCA requires specific knowledge, and when YouTube had that knowledge (usually based on notice from Viacom), it ?took down? the copyrighted work. 

The atmospherics of the case were also helpful to YouTube.  Unlike music sharing sites like Grokster, which were shown to have been aware of infringement but turned a blind eye to it (See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005)), there were very few ?smoking gun? emails uncovered by Viacom in discovery, so YouTube was able to credibly argue that it was not encouraging or turning a blind eye to infringement.

More commentary by Eric Goldman and Evan Brown.

Oh yeah, and the Mark Cuban thing ?. here.

Full post as published by Mass Law Blog on June 25, 2010 (boomark / email).