Wednesday, June 23, 2010

Content owners must police their intellectual property -- not service providers. Youtube/Google wins summary judgment against Viacom

After Google bought Youtube for $1.65 billion, Viacom announced that it was suing Youtube for copyright infringement, seeking more than $1 billion in damages. Specifically, Viacom was unhappy that a tremendous amount of its content was appearing on Youtube without Viacom's permission. Enter the DMCA -- the Digital Millenium Copyright Act. Enacted in 1998, the DMCA protects service providers from liability for copyright infringement if they meet certain criteria. The service provider must not:
  • have actual knowledge of infringing activity, or must not be aware of facts from which infringing activity is apparent
  • upon obtaining such knowledge, act expeditiously to remove the infringing activity
A service provider must also designate an agent to receive notices of infringing activity from content owners.

Youtube/Google had designated an agent. When Viacom sent a list of 100,000s of pieces of infringing content, Youtube took those videos down within 24 hours. Viacom sought to impose liability because Youtube makes a lot of money off of videos, and it knows that some of them must be infringing. Youtube's response was that it doesn't know which ones are infringing, and looking through all of its videos to figure that out is the obligation of the rights holder -- not the service provider. Youtube further explained that its users upload 24 full hours of new video content. Every minute. Yes, every minute.

The parties asked the Court to resolve the issue on summary judgment. The Court framed the primary issue as follows:
Thus, the critical question is whether the statutory phrases "actual knowledge that the material or an activity using the material on the system or network is infringing," and "facts or circumstances from which the infringing activity is apparent"... mean a general awareness that there are infringements (here, claimed to be widespread and common), or rather mean actual or constructive knowledge of specific and identifiable infringements of individual items.
After extensively analyzing the legislative history of the DMCA, the Court agreed with Google, and held that the content-owner is the one with the obligation of enforcing its rights. Thus, the burden of identifying infringing content and informing the service provider of such content is the content owner's burden -- a service provider isn't obligated to police everyone else's content.

Viacom also argued that Youtube didn't properly comply with the DMCA in that one notification provision of the DMCA allows content owners to identify a "representative list" of infringing content, which the service provider should then take to remove all content which infringes the same work. The law states:
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
The Court rejected this argument, noting that it was at conflict with the rest of the DMCA's emphasis on allowing the service provider to avoid the task of searching for infringing content. From what I understand, Viacom intends to appeal, and I imagine they will delve into this issue deeper.

Google describes its win at its official blog. Read the decision below.

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