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Viacom Int’l Inc. v. YouTube, Inc.
By Pio Szamel – Edited by Laura Fishwick

Viacom Int’l Inc. v. YouTube, Inc., 07 Civ. 2103 (S.D.N.Y. April 18, 2013)
Slip opinion

Hacked By Over-XOn April 18, 2013 the U.S. District Court for the Southern District of New York once again granted summary judgment for YouTube in Viacom Int’l Inc. v. YouTube, Inc., on remand from the Second Circuit Court of Appeals. Judge Louis L. Stanton held that YouTube did not have any actual knowledge of any specific infringements of the Viacom content in suit, nor was it willfully blind to any such specific infringements. He also held that YouTube did not have the “right and ability to control” infringing activity for the purposes of 17 USC §512(c)(1)(B), and that YouTube’s transcoding of clips for viewing on mobile devices is protected by the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”), 17 USC §512(c).

Reuters has further coverage of the decision, which is hailed by the Electronic Frontier Foundation and Eric Goldman. JOLT Digest previously covered the District Court’s prior grant of summary judgment in favor of YouTube, and the Second Circuit’s decision to vacate part of that prior order and remand for further proceedings.

In its landmark decision reviewing the prior grant of summary judgment in this case, the Second Circuit affirmed the District Court’s ruling that YouTube qualified for the DMCA’s safe harbor provisions, but remanded for more extensive consideration of four narrower issues: a) whether YouTube had actual knowledge of specific infringements of the content in suit, b) whether it was willfully blind to any such specific infringements, c) whether YouTube had the “right and ability to control” infringing activity under the exception to the safe harbor created by §512(c)(1)(B), and d) whether any potential syndication of these clips to third parties was protected by the DMCA’s safe harbor. Slip op. at 1–2. Considering these issues in light of the Second Circuit’s guidance on remand, the District Court once again found for YouTube on every issue.

On the issue of actual knowledge of specific infringements, Viacom was done in by its admission that it had “failed to come forward with evidence establishing YouTube’s knowledge of specific clips-in-suit.” Id. at 3. Viacom had attempted to argue that the burden should be on YouTube to prove lack of such knowledge, but the District Court dismissed this argument as rooted in “an anachronistic, pre-Digital Millennium Copyright Act… concept” of the law, id. at 4, explaining that “Congress has determined that  the burden of identifying what must be taken down is to be on  the copyright owner, a determination which has proven practicable in practice.” id. at 6. Similarly, in dismissing the willful blindness claim the District Court pointed to Viacom’s inability to identify information in YouTube’s possession indicating specific infringements, as opposed to “information that infringements were occurring with particular works, and occasional indications of promising areas to locate and remove them.” Id. at 9. On the issue of syndication, the court found that YouTube’s transcoding of videos for playback on devices from Apple, TiVo, and other device makers merely amounted to “steps by a service provider taken to make user-stored videos more readily accessible (without manual intervention) from its system to those using contemporary hardware,” and thus were protected by the DMCA’s safe harbors. Id. at 23.

The District Court gave more extensive consideration of the issue of whether YouTube had the “right and ability to control” infringing activity, thereby bringing it outside the safe harbor. The Court started with the “governing principle” that “knowledge of the prevalence of the infringing activity, and welcoming it, does not itself forfeit the safe harbor.” Id. at 13. Quoting the Second Circuit, the Court wrote that “something more” is needed, citing as examples of “something more” prior cases in which service providers had been found to prescreen, edit, and dictate content or in which they had encouraged and aided specific infringements. Id. at 12-13. In contrast to such cases, the court found that here YouTube was perfectly entitled under the safe harbor to attach conditions to access to proprietary “digital fingerprinting” technology to identify infringement, and YouTube’s other activities went “no further than the normal function of any service provider, and shows neither participation in, nor coercion of, user infringement activity.” Id. at 18.

This decision marks a significant victory for YouTube and other hosting providers, filling out the standards for “willful blindness” and the “right and ability to control” in favorable ways. But it is not the end of Viacom v YouTube, as Viacom has already promised to appeal once again to the Second Circuit.

Pio Szamel is a 1L at Harvard Law School.

Posted On May - 2 - 2013 Comments Off

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