Transcript Slide 1

Viacom v. YouTube:
The Future of the Section
512 Safe Harbors?
Mary Rasenberger
April 2011
DMCA Legislative History:
Purpose of Section 512
“[Section 512] preserves strong incentives for
service providers and copyright owners to
cooperate to detect and deal with copyright
infringements that take place in the digital
networked environment.”
Skadden, Arps, Slate, Meagher & Flom LLP
Section 512(c)(1) Qualifications
Service provider shall not be liable … by reason of the storage at
the direction of a user… if the service provider:
(A)(i) does not have actual knowledge …
(ii) …is not aware of facts or circumstances from which
infringement is apparent;
(iii) upon obtaining knowledge or awareness, acts
expeditiously to remove or disable access…
(B) does not receive a financial benefit directly attributable
to the infringing activity … where service provider has the
right and ability to control such activity; and
(C) upon notification of claimed infringement (under
section (c)(3)), responds expeditiously to remove, or
disable access to, the infringing material…
Skadden, Arps, Slate, Meagher & Flom LLP
Section 512(c)(3): Elements of notice
(A) Written communication provided to designated agent that
includes substantially:
(i) A physical or electronic signature;
(ii) Identification of the copyrighted work infringed… or, if
multiple copyrighted works at a single online site are
covered by a single notification, a representative list of such
works at that site;
(iii) Identification of the material that is claimed to be
infringing … and information reasonably sufficient to
permit the service provider to locate the material;
(iv) Contact information for the complaining party;
(v) Statement of good faith belief that use infringes;
(vi) Statement that information is accurate and that complainant
is authorized to act on behalf of copyright owner.
Skadden, Arps, Slate, Meagher & Flom LLP
Section 512(m): Protection of Privacy
Nothing in this section shall be construed to condition the
applicability of subsections (a) through (d) on —
(1) a service provider monitoring its service or
affirmatively seeking facts indicating infringing
activity, except to the extent consistent with a
standard technical measure complying with the
provisions of subsection (i); or
(2) a service provider gaining access to, removing, or
disabling access to material in cases in which such
conduct is prohibited by law.
Skadden, Arps, Slate, Meagher & Flom LLP
Emails among Youtube Founders
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“if you remove the potential copyright infringements, site traffic
and virality will drop to maybe 20% of what it is . . . i’d hate to
prematurely attack a problem and end up just losing growth due
to it.”
“i know that if [we] remove all that "copyright infringement
stuff", we go from 100,000 views a day down to about 20,000
views or maybe even lower.
“we have to keep in mind that we need to attract traffic. how
much traffic will we get from personal videos? remember, the
only reason why our traffic surged was due to a video of this
type. . . . viral videos will tend to be THOSE type of videos.”
“jawed, please stop putting stolen videos on the site. We’re
going to have a tough time defending the fact that we’re not
liable… when one of the co-founders is blatantly stealing
content from other sites and trying to get everyone to see it.”
Skadden, Arps, Slate, Meagher & Flom LLP
Viacom v. YouTube: Findings
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“A jury could find that the defendants not
only were generally aware of, but welcomed,
copyright infringing material being placed on
their website. Such material was attractive to
users, whose increased usage enhanced
defendants' income from advertisers…"
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But…YouTube complied with notice and take
down.
Skadden, Arps, Slate, Meagher & Flom LLP
Viacom v. YouTube: District Court
Decision: June 2010
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Court frames “Critical Question”:
– Whether “actual knowledge” and “awareness of facts and
circumstances from which infringing activity is apparent” mean a
general awareness of widespread infringement or actual or
constructive knowledge of specific, identifiable infringements of
individual items?
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Concludes:
– Both mean knowledge of specific instances on infringement.
Skadden, Arps, Slate, Meagher & Flom LLP
Viacom v. YouTube: Conclusion
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Based on review of prior case law and YouTube’s
more recent take-down efforts, J. Stanton
concludes:
– The notice and take-down regime works effectively
• When Viacom sent a notice with 100,000
videos; all were taken down the next day.
– YouTube is doing all it needs to do.
– Up to Viacom to locate each infringing file and send a compliant
notice.
Skadden, Arps, Slate, Meagher & Flom LLP
Viacom v. YouTube: Issues in
Legislative Interpretation
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Under basic principles of legislative interpretation, court
should give effect, if possible to every clause and word of
a statute.
– Montclair v.Ramsdell, 107 U.S. 147, 152 (1883) (Harlan, J.).
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Where Congress uses a term in a statute that has a settled
meaning in the common law, that settled meaning must be
adopted unless the statute expressly states otherwise.
– Neder v. U.S., 527 U.S. 1, 21 (1999).
Skadden, Arps, Slate, Meagher & Flom LLP
Legislative History: Red Flags
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“Where the infringing nature of such sites would be
apparent from even a brief and casual viewing.”
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A service provider has no obligation to seek out copyright
infringement but it won’t qualify for the safe harbor if it
“turned a blind eye to red flags of obvious infringement.”
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“Service provider need not monitor its service or
affirmatively seek facts indicating infringing activity,” but
…
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“Once one becomes aware of such infringement, it may
have an obligation to check further.”
Skadden, Arps, Slate, Meagher & Flom LLP
Viacom v. YouTube: Policy Issues
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What happened to cooperation: Are there any
incentives left for service providers to cooperate?
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Can a content owner effectively police user
generated infringement (UGI) if it has to identify
every URL of every item of infringing content?
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How can content owner effectively police UGI on a
site when it can’t filter the site?
Skadden, Arps, Slate, Meagher & Flom LLP
Viacom v. YouTube: Policy Issues
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Should UGC sites be allowed to profit from knowingly
hosting infringing content?
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On other hand, how can service provider remove
infringing content if it doesn’t have particularized
knowledge of where it is?
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Who bears the burden of identifying infringing content?
– Who is in the better position to do so?
– Obligation to use filtering technologies?
– Will it really harm the robustness/growth of Internet if
ISP’s hosting rampant infringement have to bear
burden of filtering?
Skadden, Arps, Slate, Meagher & Flom LLP