YouTube Moves for Safe Harbor Against Viacom

In 2007, a group of television networks, music publishers, and sports leagues, led by media company Viacom (collectively, “Viacom”), sued online video giant YouTube, a subsidiary of Google, for copyright infringement. At issue were nearly 80,000 allegedly infringing clips that had been uploaded to the site between 2005 and 2008.

To its credit, YouTube has taken efforts since then to mitigate wide-scale infringement on its service, spurred in part, perhaps, because of its exposure to legal liability, but the case continues.

In 2010, the Southern District Court of New York granted YouTube’s motion for summary judgment that it qualified for DMCA safe harbor protection against all Viacom’s claims of direct and secondary copyright infringement. Google quickly claimed victory not only for itself, but also on behalf of “billions of people around the world.”

The court ruling was appealed to the Second Circuit, which released its opinion earlier this year. The court affirmed several legal holdings of the District Court, including its adoption of YouTube’s argument that the knowledge prong of the DMCA safe harbor requires ”knowledge or awareness of facts or circumstances that indicate specific and identifiable instances of infringement.” However, the court also clarified that the “right and ability to control” prong of the safe harbor does not require knowledge of specific instances of infringement.

The Circuit Court ultimately vacated the grant of summary judgment, calling it “premature.” Specifically, it noted the array of evidence offered by Viacom that YouTube was aware of specific infringement occurring on the site, or was, at least, deliberately avoiding becoming aware of such infringement. The record included several surveys noting a substantial percentage of unauthorized content on YouTube -- a report from Credit Suisse, Google’s financial advisor, estimated that only 10% of YouTube’s “premium” copyrighted content was authorized. In addition, numerous emails from YouTube’s founders and employees demonstrated instances where the company was aware of specific infringement.

And so, the Second Circuit remanded to the District Court to consider whether YouTube was liable for infringement based on this evidence, as well as to resolve several other issues.

Last week, YouTube filed a motion with the District Court. Though Google filed the motion under seal for the time being, news reports suggest that YouTube is again seeking summary judgment on its safe harbor defense and arguing that Viacom has failed to offer evidence that YouTube had knowledge of specific infringements of the clips-in-suit.

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