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Digital Millenium Copyright Act Saves YouTube From Liability

By Eric Misterovich

A recent District Court decision has once again reaffirmed the broad protection afforded to ISP’s under the Digital Millenium Copyright Act’s (“DMCA”) safe harbor provision. Viacom, as well as several other copyright holders, initiated suit against YouTube for alleged copyright ¬†infringement occurring on the site. The case was remanded back from the 2nd Circuit with four specific issues to be addressed. Here is a brief summary of the three primary issues (for more information on the lawsuit please see Viacom International Inc. v. YouTube, Inc.):


ISSUE 1: Whether YouTube Had Knowledge or Awareness of Any Specific Infringements


Argument: YouTube had provided the court with 63,060 clips-in-suit and alleged that it did not have adequate notice of any infringement. Viacom’s countered by arguing that the safe-harbor did not apply because there was no evidence showing that YouTube was able to sort the infringing clips from the non-infringing clips.


Law: The DMCA requires copyright holders to provide actual written notice of claimed infringements.


Conclusion: Viacom lacked proof that YouTube had knowledge or awareness of any specific infringement of the numerous clips. The court viewed Viacom’s argument as a sort of self-fulfilling prophecy. Viacom could not simply assume that because it did not have the means to sort through the high volume of clips that YouTube had the burden to do the same and, if not, the failure to act inferred knowledge.


ISSUE 2: Whether YouTube Willfully Blinded Itself to Specific Infringements


Argument: Viacom next sought to impute knowledge by raising the common law defense of willful blindness.


Law: Willful blindness allows a court to assume knowledge existed if a party was highly likely to be aware of a disputed fact and took conscious action to avoid confirming the existence of that fact. In the context of the DMCA, an ISP loses safe-harbor protection only when it is blind to specific and identifiable instances of infringement.


Conclusion: Viacom pointed to specific search areas that YouTube should have been able to infer infringement from. The court held that these search areas were not specific or identifiable enough to suggest YouTube was aware of any infringement occurring on its site.


ISSUE 3: Whether YouTube Had the Right and Ability to Control Infringing Activity


Argument: Viacom next asserted that YouTube had the ability to monitor infringing activities occurring on its site because YouTube removed some infringing content, facilitated searches on the site, and enforced rule of conduct.


Law: Under the DMCA an ISP only loses the safe-harbor defense if it had “something more” than just ordinary control over the infringing activity. “Something more” exists if the ISP (1) pre-screened content, (2) rendered extensive advice to users regarding, or (3) edited content.


Conclusion: The court did not view YouTube’s content control as “something more” than that of a normal ISP. YouTube had not “induced users to submit infringing videos, provided users with detailed instructions about what content to upload or edited their content, prescreened submissions for quality, steered users to infringing videos, or otherwise interacted with infringing users” to a level where it would have been a participant in the infringement.

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