by Tony Berman with
contributions by Simone Chen
Scores of online websites breathed a sigh of relief over the recent landmark victory for Google in a billion dollar copyright infringement suit, brought by media giant Viacom in 2007. Judge Louis Stanton of the U.S. District Court for the Southern District of New York ruled that hosts of Internet sites, onto which users may upload content, such as YouTube and Facebook, are essentially protected from copyright infringement liability, so long as they comply with the “safe harbor provisions” of the Digital Millennium Copyright Act. The decision is an affirmation of the current federal laws protecting Internet service providers, but at the same time, serves a blow to copyright owners of creative content. (Read the text of the decision.)
What is the Digital Millennium Copyright Act?
The DMCA, a U.S. copyright law enacted in 1998, was created to protect intellectual property on the Internet. The Act also created carve-out “safe harbor provisions” (as previously discussed in a post here) to protect service providers from infringing acts committed by its users. To qualify for such protection, providers must comply with certain regulations: they must promptly take down unauthorized materials from their site when notified by the true copyright owner. Furthermore, they must be able to show they did not actually know the material was infringing and still did nothing. In other words, they must not have deliberately turned a blind eye to the problem. In addition, even if providers did not have any such actual knowledge, they must not have been aware of any facts or circumstances that made the infringing activity apparent.
Why did Viacom sue Google’s YouTube?
Viacom, which owns the MTV, Comedy Central and Nickelodeon networks, claimed that Google allowed tens of thousands of Viacom’s copyrighted videos to be uploaded onto YouTube, without authorization, which resulted in hundreds of millions of views. (Google acquired YouTube in 2006 for nearly $1.7 billion.) Viacom argued that because Google and YouTube actually knew of and were aware of the infringing activity, they were not protected by the safe harbor provision, and therefore subject to liability. Viacom sued for $1 billion in damages.
Did Google know about the infringing material?To some extent, there was evidence that Google was aware that unauthorized, copyrighted materials were uploaded onto YouTube. This evidence was presented in court documents, in the form of emails that had been exchanged between the founders of YouTube. The emails essentially showed that they chose not to take down such materials, in order to increase user traffic on the site.
However, Google’s attorneys successfully argued that despite its general awareness of the unauthorized videos, Google did not actually know that they were copyrighted materials owned by Viacom. On user-generated content sites, it can be extremely difficult to distinguish between authorized and unauthorized material; the site-owners do not know who actually posts the clips.
Why did the court side with Google?The issue comes down to whether a provider’s general knowledge that unauthorized materials are present on the site is enough knowledge to lose its safe harbor protection? Judge Stanton answered “no”, ruling that forcing service providers to police copyrighted material, that is, to require providers to actively discover what is authorized and what is not, would contravene the structure and intent of the DMCA. The responsibility of monitoring the material rests squarely on the shoulders copyright owners. Indeed, this case shows that the DMCA regime works efficiently: after Viacom sent one mass takedown notice to YouTube on February 2, 2007, in regards to some 100,000 unauthorized videos, YouTube immediately removed nearly of them, wrote Judge Stanton. Because YouTube complied with these basic requirements, it is protected under federal law from claims of copyright violation.
Should service providers employ filtering technologies now?
Since Viacom filed suit, YouTube implemented an automated filtering system in 2008 to detect and block infringing clips from being uploaded onto its site. It has also secured rights through various licensing deals to post hundreds of thousands of music videos, TV shows, and film clips.
Based on Judge Stanton’s ruling, these extra precautions do not appear to be necessary. Basically, so long as the provider complies with a takedown notice in a timely manner, and it does not actually know that certain unauthorized materials, belonging to specific copyright owners, are present on its site, then that is all that is necessary to be protected under federal law.
Why is this decision
important? What does it mean for the future of information and media on the
With the explosion in user-generated content on the Internet over the past few years, there has been a constant battle between the creative community (the owners and creators of the content) and the disseminators of the information. It essentially comes down to two viewpoints: those companies and users who see the Internet as a rich entertainment platform, with free flowing ideas and content, and those parties who value the creative product they have created as personal property.
If the ruling survives Viacom’s anticipated appeal, it is an affirmation of the current statutory framework, and basically takes the burden off of user-generated service providers from having to monitor each and every piece of material that its users post to its site, as long as it plays by the rules. On a broader scale, the decision encourages users to freely share media through services such as YouTube and Facebook, thereby facilitating the growth of a rich online community of information, communication and entertainment.