News

YouTube 1, Viacom 0

6/28/2010 12:01 AM Eastern

Copyright owners, take note:
When your content is spotted on sites like
YouTube, the burden is yours alone to get it
taken down.

That was the crux of a federal district
court judge’s decision last week, ruling that
Google’s YouTube is protected against Viacom’s
copyright-infringement claims by the
U.S.’s Digital Millennium Copyright Act.

Viacom immediately said it plans to appeal
the decision, and argued that “common sense”
dictates that the likes of YouTube shouldn’t be
allowed to build substantial businesses based
on content owned by other people.

The media company, whose major cable
properties include Nickelodeon, Comedy
Central and MTV, filed suit against YouTube
and Google in 2007, alleging they engaged
in deliberate copyright infringement designed
to boost traffic to YouTube, and was
seeking more than $1 billion in damages.

On June 23, Judge Louis Stanton of the U.S.
District Court for the Southern District of New
York granted Google’s request for a summary
judgment that it qualifies for DMCA protection,
saying that YouTube removed illegal content
promptly, as required by federal copyright law.

“When [YouTube] received specific notice
that a particular item infringed a copyright,
they swiftly removed it,” Stanton wrote. “It is uncontroverted
that all the clips in suit are off the
YouTube website, most having been removed in
response to DMCA takedown notices.”

The DMCA, enacted in 1998, grants online
service providers immunity from copyright
liability if they remove unauthorized
content after they receive a “takedown” notice
from the copyright holder.

Viacom said in a statement: “We believe
that this ruling by the lower court is fundamentally
flawed and contrary to the language
of the Digital Millennium Copyright Act, the
intent of Congress, and the views of the Supreme
Court as expressed in its most recent
decisions. We intend to seek to have these issues
before the U.S. Court of Appeals for the
Second Circuit as soon as possible. After years
of delay, this decision gives us the opportunity
to have the Appellate Court address these
critical issues on an accelerated basis. We look
forward to the next stage of the process.”

Viacom had argued that Google’s claims
of protection under the DMCA were disingenuous
— and that the Internet giant used
the law to cover previous misdeeds.

YouTube did remove disputed clips after
the media company sued, acknowledged
Michael Fricklas, Viacom executive vice
president, general counsel and secretary.
“Before that, however, YouTube and Google
stole hundreds of thousands of video clips
from artists and content creators, including
Viacom, building a substantial business
that was sold for billions of dollars,” Fricklas
said in a statement after the district judge’s
ruling. “We believe that should not be allowed
by law or common sense.”

Viacom previously pointed to internal
Google documents unearthed in the case
including one 2006 presentation that said,
“YouTube’s business model is completely
sustained by pirated content” (see “Viacom:
Google a Pirate’s Den,” April 19, 2010, page
8). Fricklas said that Viacom “always knew
that the critical underlying issue would
need to be addressed by courts at the appellate
levels. Today’s decision accelerates
our opportunity to do so.”

Excerpts from Judge Stanton’s order:

“[W]hen [YouTube] received specific notice that a particular item infringed a copyright,
they swiftly removed it.”

“General knowledge that infringement is ‘ubiquitous’ does not impose a duty on the
service provider to monitor or search its service for infringements.”

“To let knowledge of a generalized practice of infringement in the industry, or of a
proclivity of users to post infringing materials, impose responsibility on service providers
to discover which of their users’ postings infringe a copyright would contravene the
structure and operation of the DMCA.”

SOURCE: U.S. District Court for Southern District of New York

October