Letter from AmeriKat II: Viacom v YouTube - The Viacom Appeal

Willfull Blindness cannot save you now

Viacom argues that, even if Section 512(c) excludes from liability those that do no not have URL-specific knowledge of infringement, the district court erred by finding for YouTube where the evidence showed that it was willfully blind to the massive scale of copyright infringement on the site. It was held In re Aimster Copyright Litigation (2003), cited in Arista Records v Doe 3 (2010) and recently in Tiffany v eBay that “willful blindness is knowledge in copyright law…as it is in the law generally.” Willful blindess occurs where a person engages in “deliberate avoidance” amounting to knowledge where “the circumstances were such to alert [the person] to a high probability” of the relevant fact, but the defendant “consciously avoided learning” that fact. A potential finding of willful blindness can be defeated where a defendant “continually taking steps to further refine its anti-fraud measures”, as was the case of eBay in Tiffany v eBay. Viacom argues that YouTube actually did the opposite of eBay in taking “affirmative steps to shut down any mechanism that might have provided the URL-specific knowledge YouTube claims is indispensable” for a finding of liability by removing the ability for community users to flag suspected infringing videos and only “selectively” implementing fingerprint technology. (picture, top left - YouTube's business policy? - "See no evil, hear no evil, speak no evil")

The Section 512(1)(B) Problem: YouTube Profiteering from Infringement

Section 512(c)(1)(B) requires that a defendant who benefits from a safe harbour protection must “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.” Judge Stanton held that YouTube lacked the “right and ability to control” the activity because they did not have “item-specific” knowledge of the activity, but did not rule on whether or not they received a financial benefit. Viacom again argues that the touchstone of “item-specific” knowledge is not a pre-requisite for being able to control an activity. This is because, says Viacom, YouTube has the “ability” to control third-party infringement by implementing Audible Magic filtering.

Further, like with the district court’s interpretation holding
Section 512(c)(1)(A)(ii) virtually meaningless, their interpretation of Section 512(c)(1)(B) is rendered likewise. This is because, if “right and ability to control” requires an ISP to have “item-specific knowledge”, this appears to be the same knowledge required for and ISP to fall foul of Section 512(c)(1)(A)(i) and (ii). Section 512(B), on this construction, essentially duplicates Section 512(c)(1)(A) as any service provider who has item specific knowledge of users’ acts of infringement automatically falls foul of Section 512(c)(1)(A) and thus never gets to Section 512(B).

Viacom argues that Congressional intent of Section 512(c)(1)(B) was to track the common law rule that a defendant may be found vicariously liable for copyright infringement where the defendant

“derive[s] a direct financial benefit from the infringement and ha[s] the right and ability to supervise the infringing activity.” (Ellison v Robertson (2004); Matthew Bender v W. Publishing Co. (1998))

This interpretation, says Viacom, is confirmed by Congress in the HR Rep NO 105-551(I) at 25-26, by the courts in Perfect10 and by academics in Nimmer on Copyright (section 12B.04[A][2] at 12B-38). Because vicarious liability turns on financial benefit and control, even in the absence of actual knowledge of infringement (Shapiro (1966); Grokster (2005)), YouTube’s activities clearly fall within the scope of Section 512(c)(1)(B). This is because, Viacom argues, YouTube has the right to control activities on the site by reserving editorial control in and the right to remove content and terminate accounts. It also has the ability to control the site by way of community flagging of suspected infringing videos, by way of its search feature and index and by implementation of fingerprint filtering technologies. YouTube also obtained a direct financial benefit attributable to the infringement because the infringing material acted as a “draw” or “major lure” for an ever-increasing YouTube audience. Such popularity resulted in YouTube being bought by Google for $1.65 billion only about 18 months after it was founded. This financial element is also seen by the placement of ads next to videos up until 2007.

No storage, no harbour!

A final requirement of Section 512(c)’s safe harbour is that the infringement is “by reason of the storage at the direction of a user” of the material. This includes service space for a user’s website, chatroom, or other forum where material is posted by users, which on the face of it may include a YouTube-type service. However, Viacom argues that its claims of infringement do not have anything to do with “storage” with or without the direction of a user: YouTube, in transcoding user-uploaded material into a standard format for display, distribution and performance of the content from its site, does not just facilitate storage but facilitates broadcasting. Viacom argues that a user’s decision to upload a video on to YouTube is not a direction to YouTube to then make copies of the video in different formats, to index and feature the material, or to licence the material to third parties to make viewing of the video easier on hand-held devices (such as the case with Verizon wireless). Viacom argues that YouTube takes those actions independently and for its own benefit and profit.

However, the AmeriKat cannot help but find fault with this argument because, if YouTube users just wanted their videos to be stored they would not be uploading them onto YouTube. YouTube users upload their videos on the site for the very reason that YouTube transforms the video into the particular viewable format. Surely their “direction” is implicit from the mere fact they are using YouTube to upload their video.

What’s Next

Almost 55 pages later, the bulk of Viacom’s substantive arguments end and its arguments for their motions for summary judgment on these issues begin—all in all 13,880 words or 15,000 more than this post.

A large swarm of amici curiae including Microsoft, The Washington Post, Newspaper Association of America, The
Associated Press, and a group of economic professors also aligned with Viacom – a summary of their briefs can be found here. Microsoft’s brief in particular focused on YouTube’s “intentional efforts to build – and expand – its business based on a model that invited users to upload copyright infringing content to its site” and stating that this type of activity was not intended by Congress to benefit from the DMCA’s safe harbour provisions.

The AmeriKat is cautious about Viacom’s chances of success in their appeal and motion for summary judgment. Although she sees some logic in their arguments, especially in relation to redundancy of Section 512(c)(1)(A)(ii) with the heightened standard of knowledge, the US courts have in recent history been interpreting IP statutes in a way which benefits a Google, YouTube and eBay-type business model and she does not think that this case will be all that different. What do readers think? Will the Appeals Court save Viacom?

As far as the AmeriKat is aware, we have yet to receive a response from YouTube’s camp, be it press release or court filing. The AmeriKat has not been able to find any evidence of a peep or meow from YouTube, but if any reader knows of any, please let her know.

Letter from AmeriKat II: Viacom v YouTube - The Viacom Appeal Letter from AmeriKat II:  Viacom v YouTube - The Viacom Appeal Reviewed by Annsley Merelle Ward on Tuesday, January 11, 2011 Rating: 5


  1. "willful blindness" is perhaps the most often mis-used term. Lord Nelson was accused of it 1st when he looked in his telescope at his commanding ship so as to see the signals being given. He intentionally used his blind eye and thus could not see the command to withdraw.

    The very nature of the phrase necessitates specificity as to a particular fact. Was YouTube aware that the specific posts complained of by Viacom were infringing - no. Where they aware that some materials on its site were infringing - sure. and what were they to do with this "blind" knowledge? They were free to take reasonable steps - which the apparently did.

    I hope Viacom loses big-time here. They want the world to police their IP (which is a right proteted as an exception to the 1st amendment and not a rule). I hope that the court is wise enough to issue an opinion that clarifies this issue once and for all.

  2. I think that the determination of copyrighted work being infringed involves, not just the ownership, but whether there has been consent which needs the cooperation of the right owner. Such burden could be particularly onerous.


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