Wednesday, June 30, 2010

Viacom vs. YouTube May Be a Victory For Copyright Owners

The Viacom Int'l Inc. v. YouTube, Inc., 07 Civ. 2103 (LLS) (S.D.N.Y. June 23, 2010) summary judgement in favor of YouTube was hailed as a victory for technology companies and a loss for copyright owners in most major publications. In my opinion, the instant analysis of the case and its effect on future litigation misses a key important point. This point is the amount of time that Internet Service Providers (ISPs)/Online Service Providers (OSPs) have to remove infringing content once they have received a Digital Milenium Copyright Act (DMCA) take down notice.

There is a saying among lawyers that goes something like, "when the law is against you, argue the facts. When the facts are against you, argue the law. If both the law and the facts are against you, attack the other side." In this case, the law was clearly against Viacom. The DMCA's safe harbor is as wide as the Pacific Ocean. 17 U.S.C. Section 512 (c) provides ISPs/OSPs broad protection against claims of copyright infringement by rights holders whose work appears on the ISP's/OSP's websites. In addition, the facts of Viacom's case appeared to favor YouTube. According to the facts of the case, Viacom spent several months accumulating over 100,000 videos that were illegally uploaded to YouTube and then sent one massive take down notice on February 2, 2007 to YouTube. By the next business day, YouTube had removed virtually all of the illegally uploaded videos.

The bottom line is that the take down provisions in the DMCA worked. Several months after the lawsuit was initially filed in 2007, YouTube launched a service called Video Identification Tool which assists copyright holders in protecting their content from being illegally uploaded onto YouTube. It appears that YouTube was extremely responsive in this matter.

If YouTube did not act as quickly as it did to remove the infringing content then I believe Viacom's position would have been greatly strengthened and a different outcome may have occurred. Therefore, I don't think this was the best test case for copyright holders.

In my analysis of the DMCA, ISPs/OSPs have only a small window of time to remove infringing material once they have received a DMCA take down notice. The next time an ISP/OSP is sued for enabling copyright infringement it will need to prove that it took no more than a few business days to remove the alleged infringing material after it has been notified. If it takes more than several days for the alleged infringing material to be removed I believe that the copyright holder will have a stronger case than Viacom that the ISP/OSP should not be protected under the DMCA's safe harbor provisions. Since it took YouTube only one business day after it received a DMCA take down notice to remove the infringing content, the bar is set extremely high for other ISPs/OSPs. The take down notice was also sent more than 3 years ago and since then technology should make it even easier for ISPs/OSPs to remove infringing material once they have been notified. Therefore, I believe the length of time it takes an ISP/OSP to respond to a DMCA take down notice may be a central issue in future litigation.

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