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.

YouTube also filed a 1300+ page supplement containing a list of the clips-in-suit alongside a blank column with the heading “Viacom’s evidence,” though this seems more like misdirection than anything else. The DMCA safe harbor is an affirmative defense -- meaning the burden of proof is on YouTube to provide evidence that it lacked knowledge that these specific clips were infringing, not on Viacom to provide evidence that YouTube had such knowledge. This supplement also glosses over the Second Circuit’s holding on the “right and ability to control” prong.

It remains to be seen how YouTube has responded to the other issues raised by the Second Circuit. For one, the court held that “willful blindness”, which is considered at law to be a form of knowledge, can disqualify a service provider from the DMCA safe harbor, and instructed the District Court to consider whether YouTube deliberately avoided discovering infringement on its service.

The Second Circuit also expressed concerns that YouTube may have stretched the bounds of the type of passive service provider the DMCA safe harbor was drafted to protect. Viacom had presented evidence that YouTube not only provided a service for users to upload and view videos, but had also actively syndicated videos to third parties.

Although the DMCA safe harbors have been broadened by courts over the past 15 years, this case is a reminder that they are not an absolute shield against copyright liability. Their intent is to foster both the innovative potential of the internet and the creative potential of artists and authors.

 Additional posts on this case:

Second Circuit Reverses and Remands YouTube Decision

Guest Blog: Second Circuit Sends the YouTube Cases Back to the District Court