day 8

Copyright issues and
the future
IM 350 Issues in New Media Theory
Viacom v. YouTube
 -against YOUTUBE, INC., YOUTUBE, LLC, and GOOGLE, INC., Defendants
YouTube has harnessed technology to willfully infringe copyright on a huge scale,
depriving writers, composers and performers of the rewards they are owed for effort and
innovation, reducing the incentive of America’s creative industries, and profiting from the
illegal conduct of others as well. Using the leverage of the Internet, YouTube appropriates
the value of creative content on a massive scale for YouTube’s benefit without payment
of license. YouTube’s brazen disregard of the intellectual property laws fundamentally
threatens not just the Plaintiffs, but the economic underpinnings of one of the most
important sectors of the United States economy.
Defendants actively engage in, promote and induce this infringement. YouTube itself
publicly performs the infringing videos on the YouTube site and other websites. Thus,
YouTube does not simply enable massive infringement by its users. It is YouTube that
knowingly reproduces and publicly performs the copyrighted works uploaded to its site.
YouTube deliberately built up a library of infringing works to draw traffic to the YouTube
site, enabling it to gain a commanding market share, earn significant revenues, and
increase its enterprise value. YouTube has deliberately chosen not to take reasonable
precautions to deter the rampant infringement on its site. Because YouTube directly
profits from the availability of popular infringing works on its site, it has decided to shift
the burden entirely onto copyright owners to monitor the YouTube site on a daily or
hourly basis to detect infringing videos and send notices to YouTube demanding that it
“take down” the infringing works.
Viacom’s claims
1. Public performance – the defendants have, without permission of the copyright owner,
publicly performed and authorised the public performance of the infringing uploaded
2. Public display – the defendants have, without permission of the copyright owner,
publicly displayed and authorised the public display of the infringing uploaded videos;
3. Reproduction – the defendants have, without permission of the copyright owner,
reproduced and authorised the reproduction of the infringing uploaded videos through
the YouTube website.
4. Inducement of copyright infringement – the defendants areliable for inducing the
infringing acts of YouTube users, who infringe the plaintiff’s copyright by uploading
infringing videos to the YouTube website.
5. Contributory copyright infringement – the defendants are liable for contributing to the
infringing acts of YouTube users, who infringe the plaintiff’s copyright by uploading
infringing videos to the YouTube website.
6. Vicarious copyright infringement – the defendants are vicariously liable for the
infringing acts of YouTube users, who infringe the plaintiff’s copyright by uploading
infringing videos to the YouTube website.
YouTube’s response
Viacom’s complaint in this action challenges the careful balance established by
Congress when it enacted the Digital Millennium Copyright Act (DMCA). The
DMCA balances the rights of copyright holders and the need to protect the
Internet as an important new form of communication. By seeking to make
carriers and hosting providers liable for Internet communications, Viacom’s
complaint threatens the way hundreds of millions of people legitimately
exchange information, news, entertainment and political and artistic expression.
Google and YouTube respect the importance of intellectual property rights, and
not only comply with their safe harbor obligations under the DMCA, but go well
and beyond what the law requires.
YouTube and Google’s defence, essentially denies each of the allegations in
Viacom’s complaint and raises 12 defences in their favour. These defences
include the safe harbors, licence, fair use, failure to mitigate, failure to state a
claim, innocent intent, copyright misuse, estoppel, waiver, unclean hands, laches
and substantial non-infringing uses.
Key issues
 Is the infringement volitional? Or does YouTube’s
technology work behind their backs in ways for which they
are not responsible?
 Does YouTube qualify for DMCA safe harbor protection?
– Esp. have they been red flagged enough to know that the stuff
often infringes?
 Could they be expected to be able to identify which, and block it?
– To what degree do they financially benefit from the infringements?
Viacom v. YouTube
Decision of District Court – June 23, 2010
– Summary judgment in favor of YouTube
– YouTube is entitled to safe harbor immunity
under Section 512c of the DMCA
– Defendants are granted summary judgment that they qualify for the
protection of17 U.S.C. (section) 512 (c), as expounded above, against all
of plaintiffs' claimsfor direct and secondary copyright infringement.
Plaintiffs' motions for judgment are denied.
Viacom has appealed the ruling
– Goldman’s analysis of their appeal
Protecting ISPs
DMCA safe harbor (section 512): exempts ISPs from liability for the
infringing actions of their users, if ISPs satisfy certain conditions
 Communications Decency Act, 47 U.S.C. § 230 :
– Section 230(c)(1) provides immunity from liability for providers
and users of an "interactive computer service" who publish
information provided by others
– Does not apply to intellectual property rights, though we cover
it when we get to defamation which IS a form of IP law.
 Electronic Communications Privacy Act of 1986
– Protects electronic communication from government, third parties,
and interception, but not from employers.
Tannenbaum v. RIAA
Could just have easily done the RassertThomas case
 RIAA v. Tannenbaum
 Award Slashed
 Award Reinstated