Youtube Beats Viacom

25 June 2010

By Ben Evans

A very important case has come out of the US. Youtube has been successful in defending a $1 Billion claim by media giants Viacom.

The case supported the US safe harbour provisions, in summary Youtube will only be liable for copyright infringement where its users post unauthorised videos on its site and the copyright owner has informed Yotube of the material.

Viacom filed the claim back in 2007 and claimed that Youtube (owned by Google) was based on copyright infringement, that they knew that the site was full of copyright infringing material and that it profited from this material. This case though ruled that Youtube are only liable for the copyright infringement once they have been specifically informed of that particular video and it fails to remove the video from the site. This law is from the Digital Milennium Copyright Act (DMCA) and is remarkedly similar to the provisions in EU law. In basis the safe harbour provisions allow online service providers to avoid liability for their users' actions and absolves them of responsibility for monitoring their sites for infringements.

Viacom's argument was that:

"[Google is liable] for the intentional infringement of thousands of Viacom's copyrighted works...for the vicarious infringement of those works, and for the direct infringement of those works...[Google] had 'actual knowledge' and were 'aware of facts and circumstances from which infringing activity [was] apparent' but failed to 'act expeditiously' to stop it."

It was for the court to decide whether Youtube had to be given specific notice of infringements before it had to remove videos or whether a "general awareness" of infringing material was enough. According to the court:

"The tenor of the foregoing provisions is that the phrases 'actual knowledge that the material or an activity' is infringing, and 'facts or circumstances' indicating infringing activity, describe knowledge of specific and identifiable infringements of particular individual items...mere knowledge of prevalence of such activity in general is not enough. That is consistent with an area of the law devoted to protection of distinctive individual works, not of libraries."

The court went on to back up Youtube's notice and take down procedures: "The present case shows that the DMCA notification regime works efficiently...when Viacom over a period of months accumulated some 100,000 videos and then sent on mass take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them."

Perhaps the most pertinent parts of the ruling (for both service providers and copyright owners) is:

"If a service provider knows (from notice from the owner, or a 'red flag') of specific instances of infringement, the provider must promptly remove the infringing material...if not, the burden is on the owner to identify the infringement. General knowledge that infringement is 'ubiquitous' does not impose a duty on the service provider to monitor or search its service for infringements,"

Viacom claimed that Youtube was just like file sharing software like Napster or Lime Wire but this was rejected by Judge Louis Stanton on the basis that Youtube merely provided a platform for content and would remove infringing material as and when it was informed about it.

Ben Evans is a trainee solicitor at Lawdit.