For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

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Sunday, 28 March 2010

Letter from AmeriKat II - Viacom v YouTube (YouTube/Google)

YOUTUBE and GOOGLE

YouTube and Google's motion starts off by explaining the meritorious and important public function of YouTube's activities - specifically that it is "prominent source of political information". So much so that failed Presidential Republican candidate, John McCain's campaign "congratulated YouTube for its "ground-breaking contributions" to the democratic process "by providing a platform for political candidates". The introductory pages also expand on "YouTube's extensive efforts to help copyright owners" including providing "Copyright Tips", "reminding users that they are prohibited from uploading copyrighted content, and terminating accounts of repeat infringers. A quote from the Motion Picture Association of America (MPAA)was also cited in support of their contention:

"YouTube has been a good corporate citizen and taken off copyrighted material."

The filing states that YouTube benefits from the Safe Harbour defence because they have adopted and implemented an appropriate repeat infringer policy including the termination of repeat infringing accounts and they also inform their users of the content policy. They also state that the infringing activity alleged by Viacom is as a result of YouTube's mere storage of the content "at the direction of the user" - which is one of the specified functions of a service provider that will warrant protection under the Safe Harbor. On the specific knowledge point, Google argue that courts applying section 512(c)

"have consistently found that to disqualify an other-wise eligible service provider from safe-harbor protection, the plaintiff must come forward with evidence that the service provider had knowledge of particular infringing material on its service."

Google maintains that therefore without specific knowledge of an infringing activity that would, in the words of section 512(c) enable them to remove "the material", the presence of general knowledge of infringing material somewhere on the site is not enough to fall foul of the Safe Harbour defence (Universal Music Group Recordings v Veoh (2009)). The defendants additionally argue that there were no "red flags" that would have made it aware that there was infringing activity occurring on the site especially given that there are more than 500 million videos on the site.

From pages 39 -48 of the motion, just as where Viacom was pointing fingers at the defendants, the defendants are pointing fingers at Viacom. They state that Viacom itself "uploaded video clips from their movies and television shows to YouTube for promotional purposes" which itself complicates whether or not the defendants could reasonably know which uploaded clips were authorized and which were not. They argue that "much of its marketing activity [in placing materials on YouTube] takes place covertly." Such stealth marketing by Viacom further blurs the lines between authorized and unauthorized content making it impossible for the defendants to possess any legal standard of knowledge of infringing content on the site for the purposes of falling foul of the DMCA. Further arguments were raised regarding Viacom's marketing policies including their "leave up" practices (see p. 45 of filing). The defendants also interestingly countered that the availability of the fair use defence meant that the defendants could not have knowledge that content was infringing as it may satisfy such a defence. Expectedly, this argument was kept to a minimum.

The above arguments were a build up to the main point - that even Viacom lacked the ability to distinguish infringing from authorized material on YouTube which demonstrated that if the claimant's, whose material material it was, could not deduce this, how on earth could YouTube? In fact, countered the defendants, it was the claimant's own marketing activities which contributed to this difficulty. So why should YouTube be charged with policing content that the rightsholder cannot even recognize to be infringing? They also argued that Viacom had failed to deliver evidence on the scale of the Grokster case that could infer that they intended to, either by themselves or by their third-party users, to infringe copyright. They stated that in Grokster the undisputed evidence showed that close of 90-97% of files were infringing. Viacom, they contended, could not show anything as high as that on YouTube because it is "filled with non-infringing materials."

Both parties' filings are filled with juicy gossip of internal e-mails, marketing plans, and general business practices that will stir debate. However, the legal issue that must be determined by the 2nd Circuit is what makes this case so important: How much knowledge and of what type is required for a service provider to fall foul of the Safe Harbor? This may not be the scale of knowledge as was clearly present in the Grokster case, but there appears to be evidence that YouTube knew of at least some infringements and turned a wilful blind eye. Will the 2nd Circuit therefore follow the 7th Circuit in arguing that wilful blindness to infringement will not negate a finding of a lack of general knowledge? And what is 'specific' knowledge? So the question may well be that general knowledge of infringement may be enough, unless it is coupled with a wilful intent to be blind to that infringement. In any event, although Viacom's evidence appears strong, such an issue may be too important to allow either parties' motions for summary judgment to succeed.

There are also those that are heralding a finding in Viacom's favor could place an undue burden on service providers and potentially destroy the value and purpose of the Safe Harbour defence under the DMCA. But in the face of internal evidence of a service provider ignoring infringing material, should the Safe Harbor defence protect such activities? We will await Judge Stanton's decision...

For more information see these articles from the Financial Times, Bloomberg, and BBC.

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