IM 350
Day 7, fall, 2013
(mostly) DMCA-related issues
Viacom v. YouTube
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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT
OF NEW YORK
VIACOM INTERNATIONAL INC., COMEDY PARTNERS, COUNTRY MUSIC
TELEVISION,INC., PARAMOUNT PICTURES CORPORATION, and BLACK
ENTERTAINMENT TELEVISION LLC,Plaintiffs, 07 Civ. 2103 (LLS)
• -against• YOUTUBE, INC., YOUTUBE, LLC, and GOOGLE, INC., Defendants
VIACOM’s STORY LINE:
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
videos;
2. Public display – the defendants have, without permission of the copyright owner,
publicly displayed and authorised the public display of the infringing uploaded videos;
and
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?
Another case: Perfect 10 v Google, reminds us that one has
to do takedowns properly (according to the procedures) in order
for them to “count”
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.
• YouTube won the appeal and the USSC
refused to review the decision
– Goldman’s analysis of their appeal
Appeal remands; district kills it
•
April 5, 2012,
Appeals Court Revives Viacom Suit Against YouTube
By BRIAN STELTER
http://mediadecoder.blogs.nytimes.com/2012/04/05/appeals-court-revives-viacom-suit-againstyoutube/
•
the appellate court said that there MIGHT be knowledge on Google's/YouTube's part... and if so...
maybe there's a case, so sent it back to the district court.
•
But the district court killed that notion and the whole case by issuing a summary judgment saying the
thing shouldn't even go to trial.
By Don Jeffrey & Bob Van Voris - Apr 18, 2013 11:01 PM CT
Viacom Copyright Suit Against Google’s YouTube Thrown Out
http://www.bloomberg.com/news/2013-04-18/viacom-copyright-suit-against-google-s-youtubethrown-out.html
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the Supreme Court refused to review the case.
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So there's no waiting for further appeal. This one is done.
Protecting ISPs
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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.
• Note Goodman’s article about re-registering DMCA agents and his
argument about the potential lack of fairness.
– One could apply that reasoning to putting copyright registration back in as a
way to deal with orphans.
Tannenbaum v. RIAA
• Rassert-Thomas
• RIAA v. Tannenbaum
Universal Library
We should make clear, as part of our discussion over how unfair
the system is: Google has already committed MASSIVE
copyright infringement. Probably enough to put them totally out
of business if at full price. Yet, no one is going to sue them for all
of it; instead, various parties have tried to cut deals with them.
• The first judge made a “settlement” proposal with administrative
protocols that Google executed in hopes the thing would go away
• The second judge threw that deal out
• Eventually, all the publishers pulled out of the suit(s)
• Leaving the author’s guild
• Then a judge finds that the schools that let them copy the books
aren’t liable for contributory infringement.
• It might be all over, except the shouting. At this point, few expect
the Author’s guild to win
• Do we want Google to be the portal for the universal library?
– Perhaps they are the only ones to do it.
– Even if it’s mostly free and even if it does return $ to rights holders, it
will be at the cost of all the data collected about users.
Exceptions creeping in
(as part of mandated review process)
• You’ll read about jail breaking phones; unlocking (for other carriers)
was also ok.
– However, the Library of Congress did not renew the unlocking right in
2012 so that in 2013 it expired. The Department of Commerce is
considering reinstating it.
• Ripping DVDs to make “non-commercial” videos for the purpose of
criticism or comment.
– Some have taken this to give re-mix artists carte blanche on
YouTube.
– Others would NOT find YouTube to be non-commercial use AND
would not find (all) re-mixes to be criticism &/or comment
• Previous exemptions for teachers doing short excerpts was
extended from limited set of media teachers to all teachers and to
certain types of media students (for their school work). You
probably fit inside that class of students (for your school work).