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Viacom sues YouTube, Google for copyright infringement
March 13, 2007
In a press release today, Viacom, owner of the MTV and Comedy Central television networks (among others), announced it is suing YouTube and its parent company, Google, for copyright infringement. The lawsuit seeks over $1 billion in damages. The parties had been in negotiations for YouTube/Google to have a license to provide Viacom's content on YouTube, but negotiations broke down, and in February, Viacom sent takedown notices under the Digital Millennium Copyright Act (DMCA) to YouTube, asking YouTube to remove 100,000 of Viacom's video clips from the site. More details of the case and some analysis of the issues involved after the jump.Viacom's main issue appears to be that it believes that YouTube does not take proactive steps to filter out copyrighted content from being posted on YouTube in the first place. Instead, YouTube apparently requires copyright owners to follow the procedures set forth in the Digital Millenium Copyright Act for removal of copyrighted content by a hosting service. Those provisions, found in the copyright code at 17 U.S.C. § 512(a)(1) [full text at the bottom of this post], immunize an online service provider ("OSP") from claims of copyright infringement if certain criteria are met:
  1. The OSP does not have actual knowledge of the infringement, is not aware of facts or circumstances that would make infringing activity apparent, or, when obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material
  2. The OSP does not receive a financial benefit directly attributable to the infringing activity, and
  3. Upon notification of claimed infringement, the OSP responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
YouTube will likely argue that because it always "responds expeditiously" in removing clips that are alleged to be copyrighted (such as the 100,000 clips removed last month), it is entitled to the immunity provided by § 512(a)(1), and Viacom's claims must therefore fail. Viacom, for its part, will likely argue that YouTube is not entitled to § 512(a)(1) immunity because YouTube arguably receives a financial benefit directly attributable to the infringing activity, namely income from advertisements placed on pages where the copyrighted material was hosted. An interesting aspect of this case could be the potential applicability of the Supreme Court's decision in MGM v. Grokster. There, the Court held that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." This may apply to this case insofar as Viacom will likely argue that YouTube is contributorily liable for copyright infringement based on the logic of Grokster, namely that YouTube's advertising business model depends upon copyright infringement for its viability. This seems a more tenuous argument than that in Grokster, because in Grokster there was also evidence that the distributors of the KaZaA file sharing program encouraged its users to share copyrighted files. It seems doubtful that such evidence would be present here, so the necessary "affirmative steps taken to foster infringement" may be absent. Nonetheless, while the complaint is not yet available online, Viacom will likely raise this argument in support of its claim of copyright infringement. It will be interesting to follow this case, as it has practical implications for distribution of television programs, movies, and other copyrighted content over the internet in the coming years. Update (2:00pm): The complaint is available via the Wall Street Journal's website here. Viacom's claims closely follow my predictions above, namely that YouTube is directly liable and has no § 512(c)(1) immunity, as well as counts for inducing/contributory infringement under a Grokster-style theory. Further media coverage of the case: New York Times
Reuters
Boston Globe
ABC News
BBC
Wall Street Journal (subscription required)
Washington Post
USA Today
17 U.S.C. § 512(c)(1) reads:
(c) Information Residing on Systems or Networks At Direction of Users. - (1) In general. - A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider - (A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing; (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material; (B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and (C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
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