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"Web 2.0 On Trial: Testing the 'Safe Harbor' Provision in Viacom v. YouTube" by Brian Farkas

Web 2.0 On Trial: Testing the "Safe Harbor" Provision in Viacom v. YouTube

by Brian Farkas

It's time for us, the members of the Millennial Generation, to tear ourselves from Twitter, focus our eyes away from Facebook, and pay attention to this year's defining case in cyber law: Viacom Int'l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010). Viacom, which will soon be heard on appeal in the Second Circuit, is expected to become a crucial copyright case for user-generated content providers.

Viacom is a media conglomerate worth in excess of $28 billion, owning such media properties as Paramount, Comedy Central, MTV, Nickelodeon, Spike, Noggin, and VH1. YouTube is a popular website onto which users may upload videos and video clips free of charge. YouTube is "a provider of online services or network access," as defined by 17 U.S.C. § 512(k)(b)(1).

Viacom's initial argument relied on a section of the Digital Millennium Copyright Act (DMCA) that holds providers liable for copyright infringement if the provider has "actual knowledge that the material... on the system or network is infringing" or if "in the absence of such actual knowledge, [it is] aware of facts or circumstances from which infringing activity is apparent." According to Viacom's assertion, under this section of the DMCA, YouTube (and its new owner, Google Inc.) should be held liable for video content owned by Viacom.

YouTube claimed that it was immune from copyright infringement claims arising out of user postings under the DMCA, specifically §512(c). This section establishes a "notice-and-take-down" or "safe harbor" scheme under which providers are immune from third-party (i.e., the user) infringements as long as providers "respond expeditiously" when notified of specific infringements by copyright holders. In layman's terms: YouTube argues that, as the provider, it is not immediately responsible if a user posts something that infringes on a copyright holder's rights until that holder notifies YouTube of the posting. Once notified, YouTube then bears the obligation to investigate and remove the troublesome content or risk liability.

Precedent up to this point, mostly arising out of the Ninth Circuit, has given service providers very broad protection under the statutory immunity. Service providers have had no duty to seek out infringing material that may be present on their site, or to do anything about infringing material on their site, unless the copyright holder brings the existence of that material to their attention.

Viacom v. YouTube, originally decided in the Southern District of New York last June, confirmed this judicial consensus that online providers are protected from infringement liability when they work cooperatively with copyright holders. However, a reversal on appeal could split the circuits on this issue and begin a new wave of precedent favoring stricter standards for enforcement.

Why does this case matter to the Millennial Generation, or to the country at large? It is no exaggeration that the copyright immunities in the DMCA are a critical feature of "Web 2.0" and user-generated content sites (like YouTube, Facebook, Myspace and countless others). The case has the potential to change the online copyright landscape -- not just for YouTube and the specific definitions of §512(c) of the Copyright Act, but for our digital culture as it currently exists. The "safe harbor" exemption provided by section has allowed blogs and social sites that allow user comments to thrive under, rather than be hampered by, copyright restrictions.

The central issue of the case was whether the general knowledge that YouTube hosts a significant amount of infringing content makes the infringing activity "apparent". If so, then the §512(c) protection would be an ineffective defense. The district court, however, decided that the "facts and circumstances" to which the DMCA refers must be of "specific and identifiable infringements of particular items. Mere knowledge of prevalence of such activity in general is not enough." Viacom, 718 F.Supp. 523. Section 512, and the other immunities provided in the DMCA for online conduct, "place the burden of policing copyright infringement -- identifying the potentially infringing material and adequately documenting infringement -- squarely on the owners of copyright." Id. The court declined to shift a substantial burden from the copyright owner to the provider. On appeal, Viacom is seeking to have that burden turned around. They would like to require that sites block material based on factors such as suspicious labeling, or using a combination of personnel and advanced scanning software to review content before it becomes live.

Part of the beauty of §512 is its simplicity. "State of mind" inquiries about what a provider "knew" at the time of posting are essentially irrelevant. Practically speaking, it would be impossible for the company to "know" anything at all about the videos being uploaded (save for their file format and size). Asking YouTube whether it was "apparent from all surrounding facts and circumstances" that a video might be infringing would be like asking FedEx whether senders are photocopying and mailing books. Undoubtedly, some protected materials are photocopied and mailed each day throughout the nation. But that does not mean that it makes sense for FedEx to delay shipments until the possibility can be ruled out. Like YouTube, FedEx is merely the content provider.

So what's next for Viacom v. YouTube? Clearly, there are many ramifications in how the Second Circuit -- widely regarded, along with the Ninth Circuit, as the source of the most important copyright doctrine -- interprets the DMCA provision. Will the Supreme Court get involved? If the Second Circuit rules to keep the interpretation of the safe harbor provision, it would be in agreement with the Ninth Circuit and it's extremely unlikely that the U.S. Supreme Court would grant certiorari to an appeal. If the two circuits disagree, however, a granting of cert by the Court would be much more likely. For a Court that has generally been a close friend of large corporations and has relatively limited experience in cyber-litigation, the outcome is unclear.

The importance of this case cannot be overstated. YouTube, Facebook, Craigslist, Tumblr, Twitter, Myspace, and Blogger are able to operate only because they can use the safe harbor provisions to post huge volumes of content quickly. Take away this unhindered flow and we risk slowing down one of the largest growth sectors both of our economy and of our culture. David Post at the widely read law blog The Volokh Conspiracy emphasizes that sheer volume makes the safe harbor provision a necessity. "At the absurdly high volume at which these sites operate -- 250,000 words per minute posted on Blogger, 40 hours of video per minute on YouTube, etc. -- the liability risk without a safe harbor of some kind is truly astronomical, running into the billions of dollars a day," he writes. "You don't get a YouTube, or a Facebook, or a Blogger, etc. without something like Sec. 512."

The Second Circuit should confirm what is already established as common sense in our digital culture. And if they don't? Professor Lawrence Lessig of Harvard Law School gave a strong warning about such a situation in March 2007 lecture, warning of "a growing extremism" between those industry executives who steadfastly uphold copyright protections in the face of Web 2.0 technologies, and millions of average users who bend such protections. "Among our kids," he stated, "there's a growing copyright abolitionism -- a generation that rejects the very notion of what copyright is supposed to do, and believes that the law is nothing more than an ass to be ignored and to be fought at every opportunity." For our law to maintain balance between the two wrongheaded extremes, §512 is an essential part of the DMCA, and should be treated as such by our courts.


Brian Farkas is a student at the Benjamin N. Cardozo School of Law in New York City focusing in intellectual property law, and a law clerk at Shipkevich Law Firm

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This page contains a single entry from the blog posted on June 1, 2011 8:34 PM.

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