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Judge Again Rules for YouTube in Viacom Suit

A federal judge has once again ruled in favor of YouTube, finding that the Google-owned site was not liable for infringing on Viacom’s copyrights when its users uploaded tens of thousands of clips from shows like “The Daily Show with Jon Stewart” and “South Park.”

In an opinion issued on Thursday, U.S. District Judge Louis Stanton granted summary judgment to YouTube, just as he did in 2010, finding that the site fell within the “safe harbor” provision of the Digital Millennium Copyright Act. That “safe harbor” generally shields user-generated sites from liability if they quickly remove infringing content upon notice from a copyright owner, among other conditions.

Viacom had appealed Stanton’s original decision in favor of YouTube, and the 2nd Circuit agreed that the case had to be reconsidered. But Stanton still found that YouTube was not liable even under the 2nd Circuit’s order to consider whether YouTube “willfully blinded” itself to specific cases to infringement, and whether it had “knowledge and awareness” of specific cases of copyright violations. He even labeled one of Viacom’s arguments as “extravagant,” after the media conglom argued that the volume of infringing material on YouTube made it necessary for a jury to decide whether its executives had knowledge of specific copyright violations. He faulted Viacom for not producing evidence establishing YouTube’s specific knowledge of clips that were infringing, yet it failed to take down.

“If, as plaintiffs assert, neither side can determine the presence or absence of specific infringements because of the volume of material, that merely demonstrates the wisdom of the legislative requirement that it be the owner of the copyright, or his agent, who identifies the infringement by giving service provider notice,” Stanton wrote.

He dismissed Viacom’s argument that the burden fell on YouTube to prove that it was not aware of specific cases of infringement, noting that “Congress has determined that the burden of identifying what must be taken down is to be on the copyright owner, a determination which has proven to be practicable in practice.”

Rejecting Viacom’s claim that YouTube was “willfully blind” to infringement, Stanton said that the media conglom only offered examples where “at most, an area of search is identified, and YouTube is left to find the infringing clip.”

“Plaintiffs often suggest that YouTube can readily locate the infringements by using its own identification tools,” Stanton wrote in a footnote. “It had no duty to do so.”

Viacom sued YouTube for $1 billion in 2007. Around the time, it filed notices on some 100,000 clips, which YouTube removed, but has continued to pursue a case that may help define the contours of the “safe harbor” of the DMCA. Stanton’s original decision triggered the alarm not just of Viacom but Hollywood studios and some of the guilds, who warned that its wide reading of the safe-harbor provision prevents them from effectively combating piracy.

In a statement, Google’s senior VP and general counsel, Kent Walker, said, “The court correctly rejected Viacom’s lawsuit against YouTube, reaffirming that Congress got it right when it comes to copyright on the Internet. This is a win not just for YouTube, but for people everywhere who depend on the Internet to exchange ideas and information.” Walker posted more extended comments in a company blog post.

A Viacom spokesman issued a statement that said, “This ruling ignores the opinions of the higher courts and completely disregards the rights of creative artists.  We continue to believe that a jury should weigh the facts of this case and the overwhelming evidence that YouTube willfully infringed on our rights, and we intend to appeal the decision.”

Viacom contended that YouTube practically built its business on infringing videos, and even produced e-mails in which some of the site’s founders discuss the prevalence of copyrighted videos uploaded by users and their propensity to generate more traffic. But YouTube argued in court briefings that it could not take down specific clips without a notice because it did not know whether they had been authorized. YouTube pointed to evidence that Paramount deliberately “roughed up” clips from some of its projects to make it appear that they were stolen.

Sites can still be found liable if they induce or participate in the copyright infringement, but Stanton concluded that YouTube did not. His ruling left little doubt where he believes the burden lies when it comes to finding infringing material: On Viacom and other content companies. “That is where it lies under the safe harbor,” Stanton wrote.

Hillel Parness, partner at Robins, Kaplan, Miller & Ciresi, suggested that Stanton didn’t heed the instructions that the 2nd Circuit spelled out when it sent the case back to him. In an analysis of the decision, Parness wrote that Stanton “appears to ignore” the 2nd Circuit’s directive that it was wrong for him to require that Viacom, in establishing liability, YouTube had a “specific” ability to control what content went on its site. He cited one of Stanton’s quotes from his most recent opinion: “But the governing principle must remain clear: knowledge of the prevalence of infringing activity, and welcoming it, does not itself forfeit the safe harbor.”

 

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