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    US Perspectives
    Viacom v. YouTube: Chipping Away At The DMCA

    Published on 3 May 2012 @ 11:29 am

    By for Intellectual Property Watch

    It was a major legal battle between copyright owners and online businesses. Then, on 5 April, online businesses won. Mostly. The US appellate court ruling in Viacom International, Inc. v. YouTube, Inc. basically upheld the legal protection that a key US statute grants to online firms. However, the ruling also opened several holes in that protection.

    The court ruling is here [pdf].

    The Digital Millennium Copyright Act of 1998 [pdf] (often called the DMCA) set up a carefully crafted legal balance between copyright owners and online businesses. Among other things, this federal statute created a safe harbor for online firms: So long as firms meet certain requirements, they are not liable if their users post infringing materials online.

    Copyright owners, in return, were given the ability to remove infringing online materials without the expense and delay of court litigation. A copyright owner can simply notify an online firm that one of its users posted infringing material, and the online firm must promptly remove the allegedly infringing material. If it doesn’t, the online firm would lose its safe harbor and face liability for copyright infringement.

    Copyright owners initially were satisfied with this legislative compromise. But in recent years, as infringing material proliferated online, copyright owners felt the DMCA wasn’t sufficiently protecting their interests. “They believe it puts too much of the burden of copyright enforcement on copyright owners and too little on internet service providers,” said Prof. Jessica Litman of University of Michigan Law School.

    So a number of copyright owners went to court, arguing that the DMCA should be interpreted in a way that requires online firms to be proactive in stopping their customers from committing infringement. The 9th Circuit Court of Appeals rejected this interpretation in a 2011 decision, UMG Recordings, Inc. v. Shelter Capital Partners [pdf]. The 2nd Circuit, in Viacom, largely followed suit.

    None Are So Blind

    Viacom, like UMG Recordings, holds that the DMCA does not require online companies to act when they know, in general, that many of their users are posting material that infringes copyright. These online businesses are not required to monitor their users’ activities or implement new technological measures to stop infringement. The companies can claim the DMCA’s safe harbor protection unless they know of specific infringing activity and do nothing about it. In other words, a company must act only if it knows that a specific file on its service is infringing.

    That interpretation of the DMCA is a huge victory for online businesses. But Viacom added several significant caveats.

    Viacom held that an online firm is deemed to know about specific infringements whenever it is “willfully blind” to those infringements. “So a company can’t simply put its head in the sand and still receive DMCA immunity,” said Clifford Sloan, a partner in Skadden, Arps, Slate, Meagher & Flom.

    Experts disagree about what constitutes “willful blindness” in the online world. Some say that if a company knows, in general, that many of its users are committing copyright infringement, the company will be willfully blind if it fails to use known technology to stop such infringements.

    Other experts say such an interpretation goes too far. “The court is very specific about this. You can’t be willfully blind, but you have no duty to monitor and investigate based on some generalized awareness of infringing activity,” said Corynne McSherry, staff attorney for the Electronic Frontier Foundation, a group that advocates for online civil liberties.

    Control Issues

    Viacom also weakened another aspect of the DMCA safe harbor. Section 512(c)(1)(B) of the DMCA specifies that the safe harbor does not protect an online firm for infringing material posted by users when the online firm receives “a financial benefit directly attributable to the infringing activity” and “has the right and ability to control such activity.”

    The 9th Circuit held, in UMG Recordings, that this provision comes into play only when an online firm knows about a specific infringement. “Until [the online firm] becomes aware of specific unauthorized material, it cannot exercise its ‘power or authority’ over the specific infringing item,” the court stated.

    The 2nd Circuit, in Viacom, rejected this specific knowledge requirement. Thus, when an online firm knows, in general, that some of its users have posted infringing material, the firm could wind up losing its safe harbor protection if it has “the right and ability to control” users’ activities.

    What constitutes a “right and ability to control”? That’s unclear. The ability to remove materials posted by users doesn’t create such control, according to Viacom. The opinion states “something more” is needed, but fails to specify what.

    “The 2nd Circuit doesn’t say how much control an online company must have in order to fall out of the safe harbor. The court ducked that issue completely,” Litman said.

    Overall, Viacom was a setback for copyright owners. The court rejected the proposition that online businesses, not copyright holders, must bear the main burden of uncovering and fighting online infringements.

    However, the decision opened up some new opportunities to get around the DMCA safe harbor and hold online businesses liable for infringements committed by their users. This, according to many experts, will encourage copyright owners to keep filing suits in the US against online businesses and trying to hold those businesses liable for their users’ infringements.

    “If the 2nd Circuit had ruled the same as the 9th Circuit, that would have given copyright owners some pause,” said Prof. Neil Netanel of UCLA School of Law. “Since the 2nd Circuit gave them some openings, copyright owners will continue their fight in the courts.”

    Steven Seidenberg is a freelance reporter and attorney who has been covering intellectual property developments in the US for more than 15 years. He is based in the greater New York City area and may be reached at info@ip-watch.ch.

     


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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