District Court Grants Summary Judgment to YouTube in Copyright Infringement Case
June 23, 2010. The U.S. District Court (SDNY) issued an opinion and order [30 pages in PDF] in Viacom v. YouTube, granting summary judgment to the defendants. The District Court held, on cross motions for summary judgment, that the activities of YouTube at issue in this action fall within the safe harbor protection of the Digital Millennium Copyright Act (DMCA), codified at 17 U.S.C.§ 512(c).
Background. Viacom International and others filed a complaint [PDF] in the District Court against YouTube on March 12, 2007, alleging copyright infringement in connection with the operation of a commercial web site that permits users to publish copies of copyrighted works, without license. See, story titled "Viacom Files Complaint Against Google and YouTube Alleging Violations of Copyright Law" in TLJ Daily E-Mail Alert No. 1,551, March 13, 2007.
The six count complaint alleged direct infringement by public performance, direct infringement by public display, direct infringement by reproduction, inducement of copyright infringement, contributory copyright infringement, and vicarious copyright infringement.
Google, owner of YouTube, was also named as a defendant. The Court wrote that YouTube operates a website "onto which users may upload video files free of charge. Uploaded files are copied and formatted by YouTube’s computer systems, and then made available for viewing on YouTube."
Viacom International Inc. is a large television, movie and digital media content company whose copyrighted works are copied and published in the YouTube web site. The plaintiffs are Viacom, and its affiliates, Comedy Partners, Country Music Television, Inc., Paramount Pictures Corporation, and Black Entertainment Television, LLC.
Statute. Section 512 of the Copyright Act, which was enacted in 1998 as part of the DMCA, pertains to "Limitations on liability relating to material online".
Subsection 512(c) pertains to "Information Residing on Systems or Networks At Direction of Users". Subsection 512(c)(1) provides, in full, with emphasis added, as follows:
(1) In general.---A service provider shall not be liable for monetary relief, or,
except as provided in subsection (j), for injunctive or other equitable relief, for
infringement of copyright by reason of the storage at the direction of a user of material
that resides on a system or network controlled or operated by or for the service provider,
if the service provider---
(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
Then, subsection 512(c)(2) pertains to service providers' designation of agents to
receive notifications of claimed
infringement. Finally, subsection 512(c)(3) lists the requisite elements of claims of infringement.
District Court Opinion. The District Court wrote that the "defendants designated an agent, and when they received specific notice that a particular item infringed a copyright, they swiftly removed it. 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 Court added that "the DMCA notification regime works efficiently: when
Viacom over a period of months accumulated some 100,000 videos and then sent one
mass take-down notice on February 2, 2007, by the next
business day YouTube had removed virtually all of them."
The Court did not address how efficiently the DMCA regime works for individual and small business copyright holders who, unlike Viacom, lack the resources to continuously monitor, and submit claims of infringement to, the multitude of web sites for user posted content.
The Court stated that "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 infringing activity is apparent´´ in § 512(c)(1)(A)(i) and (ii) 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."
Following a lengthy review of the legislative history of the statute, the Court concluded that "the phrases ``actual knowledge that the material or an activity´´ is infringing, and ``facts or circumstances´´ indicating infringing activity, describe knowledge of specific and identifiable infringements of particular individual items. Mere knowledge of prevalence of such activity in general is not enough."
The Court added that "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".
The Court also relied upon the U.S. Court of Appeals (9thCir) 2007 opinion [29 pages in PDF] in Perfect 10 v. CCBill, 488 F.3d 1102. The Court of Appeals wrote in that opinion that "The DMCA notification procedures place the burden of policing copyright infringement -- identifying the potentially infringing material and adequately documenting infringement -- squarely on the owners of the copyright. We decline to shift a substantial burden from the copyright owner to the provider".
The Supreme Court then denied certiorari in that case. See, story titled "Supreme Court Denies Certiorari in Perfect 10 v. CCBill" in TLJ Daily E-Mail Alert No. 1,683, December 5, 2007.
The District Court also cited as authority for its holding UMG Recordings v. Veoh Networks, 665 F. Supp. 2d 1099 (C.D. Cal. 2009) and Corbis v. Amazon, 351 F. Supp. 2d 1090 (W.D. Wash. 2004).
MGM v. Grokster. The Court also discussed the Supreme Court's June 27, 2005 opinion [55 pages in PDF] in MGM v. Grokster, regarding vicarious copyright infringement by the distributors of peer to peer (P2P) systems. The Supreme Court held that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." See, story titled "Supreme Court Rules in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.
The District Court wrote in the present opinion that Grokster involved peer to peer file sharing networks "which are not covered by the safe harbor provisions of DMCA § 512(c)". Rather, Grokster, "addressed the more general law of contributory liability for copyright infringement, and its application to the particular subset of service providers protected by the DMCA is strained".
Finally, the Court wrote that "The Grokster model does not comport with that of a service provider who furnishes a platform on which its users post and access all sorts of materials as they wish, while the provider is unaware of its content, but identifies an agent to receive complaints of infringement, and removes identified material when he learns it infringes To such a provider, the DMCA gives a safe harbor, even if otherwise he would be held as a contributory infringer under the general law."
Reaction. Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "This is a good but not surprising decision. YouTube and other online platforms have bent over backwards to accommodate rightsholders, going well above and beyond what is required by the law."
Black continued that "Today, platforms for user created content are so aggressively responding to the every demand of copyright holders that even presidential candidates of all political stripes have been swept up in the copyright dragnet. Online intermediaries respond to allegations of copyright infringement very seriously, even when those claims wind up curtailing free speech or the fair use rights of third parties. Certain rightsholders ought to devote the same attention to not stifling expression online."
Sherwin Siy of the Public Knowledge (PK) stated in a release that "We are very pleased with the outcome of this case. It shows that the current structure of copyright law works well for even the largest of content-hosting sites."
Siy continued that "the burden to point out allegations of infringement is with the content provider, and the burden of taking down material lies with the service provider. Had Viacom won this case, that burden would have shifted dramatically. As the law now stands, prompt compliance with take-down notices shields an online service provider from liability."
He concluded that "the current law is working quite well to protect content creators while taking into account the responsibilities of online service providers".
The Center for Democracy and Technology's (CDT) David Sohn stated in a release that this "decision isn't just about YouTube ... Without this decision, user generated content would dry up and the Internet would cease to be a participatory medium."
This case is Viacom International, Inc., et al. v. YouTube, Inc., et al.,
U.S. District Court for the Southern District of New York, D.C. Nos. 07 Civ.
2103 (LLS) and 07 Civ. 3582 (LLS), Judge Louis Stanton presiding.