Sunday, April 10, 2011

Appellee Round Briefs in Viacom v. YouTube and Premier League v. YouTube Appeals

The Appellee round briefs (sometimes called "bottom side" briefs) have been filed in the Viacom v. YouTube and Premier League v. YouTube appeals.  My post about the opening round briefs described the case, which is about the "safe harbor" provisions of the Digital Millennium Copyright Act, 17 U.S.C. §512.  Briefly, the plaintiffs in two related cases in the Southern District of New York -- Viacom et al. in one case, the Premier League et al. in the other -- sued YouTube and Google for copyright infringement.  The plaintiffs claimed that YouTube was responsible when its users uploaded copyrighted videos and music to YouTube.  YouTube claimed it was entitled to the DMCA's "safe harbor" since it took down any copyrighted material promptly upon receipt of a notice that complied with the statute.  The district court agreed with YouTube and granted summary judgment in YouTube's favor in June 2010.  The case is now before the Second Circuit Court of Appeals.

YouTube filed its opening brief on March 31, 2011; its corrected brief is hereTechdirt has a detailed analysis of YouTube's brief, which is worth reading (and which saves me the trouble of writing my own detailed summary).  Three things I liked about YouTube's brief included: (1) it clearly explained the statutory requirements and why the statute should be interpreted as YouTube claims; (2) it pointed out how the Appellants distorted the record, to try to paint YouTube as a "pirate" site (see pages 11-15 of YouTube's brief); and (3) YouTube cleverly used the plaintiffs' posting of their own videos on YouTube for marketing purposes to support YouTube's legal arguments, such as YouTube's lack of knowledge of what was allegedly infringing (see, for example, pages 44-53).

Thirteen amicus briefs were filed in support of YouTube (not counting the AIPLA brief filed during the opening round of briefs, which mostly favors YouTube).  I co-authored an amicus brief by the Consumer Electronics Association.  The 13 amicus briefs are as follows:

  1. Anaheim Ballet, Michael Moore, Khan Academy Inc., Adam Bahner, Michael Bassik, Dane Boedigheimer, Mathew Brown, Michael Buckley, Shay Butler, Charles Como, Iman Crosson, Philip De Villis, Rawn Erickson, Hank Green, John Green, Kassem Gharaibeh, William Louis Hyde, Kevin Nalty, Allison Speed, Charles Todd, Charles Trippy and Barnett Zitron
  2. Computer & Communications Industry Ass'n (CCIA) and NetCoalition
  3. Consumer Electronics Association
  4. eBay Inc., Facebook, Inc., IAC/InterActiveCorp, and Yahoo!
  5. Electronic Frontier Foundation, Center for Democracy and Technology, International Federation of Library Associations and Institutions, American Library Association, Association of College and Research Libraries, and Association of Research Libraries
  6. Human Rights Watch, Freedom House, Reporters Without Borders, and Access
  7. Intellectual Property and Internet Law Professors
  8. MP3tunes, Inc.
  9. National Alliance for Media Art & Culture and The Alliance for Community Media
  10. National Consumers League, Consumers Union of United States, Inc., Consumer Action and the United States Student Association
  11. National Venture Capital Association
  12. Professor Michael Carrier
  13. Public Knowledge

EFF and Public Knowledge have published posts about their briefs.

UPDATE:  Eric Goldman has a lengthy post about YouTube's brief and the amicus briefs.   I'll try not to repeat what Eric says, but here's some of my thoughts about the amicus briefs, organized by topic:

  • Stealth Marketing:  The MP3Tunes brief discusses the efforts by Viacom and many other media companies to use YouTube and similar UGC sites for "stealth marketing" purposes.  In so doing, this brief offers perhaps the best practical examples of why Viacom's "generalized knowledge" scheme simply won't work.  Briefly, content companies use YouTube and similar sites to market their content, by uploading their own content using fake or dummy accounts to make the content look like it isn't associated with the content owner.  It's impossible for UGC sites like YouTube to figure this out and properly take down what's authorized and what isn't.  As the brief says, "Internet marketing practices have created a climate of uncertainty wherein service providers cannot differentiate between authorized and unauthorized content on user-generated websites."  Read this entire brief to appreciate it fully.  The brief concludes by showing that after the marketing departments of Viacom or other media companies secretly posted their own content, the same companies' legal departments then sent takedown notices, to which the marketing departments then had to send counter-notices, to re-post the authorized content.  As the brief says, "If media titans with enormous resources like Viacom and EMI cannot monitor their own copyrighted works and keep track of whether the posting of a work is authorized or not, it is absurd to expect service providers, which are not privy to even a fraction of such information, to make these distinctions."
  • User Groups:  One of the best amicus briefs at the district court level was by the "Sideshow Coalition," a collection of YouTube users who were able to distribute their own content using YouTube, which traditional media distribution channels didn't easily accommodate.  (The term "Sideshow Coalition" reflected Viacom's dismissal of individual users using YouTube to their benefit as a "sideshow," an expression Viacom left out of its appeal brief.)  While the "Sideshow Coalition" didn't make it to the Second Circuit, there are two briefs of similar user groups, the Anaheim Ballet et al. brief, and the National Alliance and Media Art and Culture et al. brief.  A related brief is by the National Consumers League et al., which discusses the value of consumer reviews.
  • "Least Cost Avoidance":  An amicus brief supporting Viacom by Stuart Brotman et al. argued that under the tort law principle of "least cost avoidance," UGC sites should bear the entire cost and liability for monitoring infringements.  The brief by Professor Michael Carrier shows why this principle isn't applicable here.  (After all, this case doesn't involve an oil spill, asbestos, or a defective product.)  It's not clear that YouTube is in fact the least cost provider -- after all, only copyright owners know if content is authorized (see the MP3Tunes brief, for example), and copyright owners are best able to decide issues such as fair use.  Prof. Carrier asks what would have happened if, for example, all photocopier machines were required to automatically refuse to copy any paper that had a copyright notice on it.  The brief by the IP and Internet Law Professors also discusses this issue.
  • Free Speech and Political Advocacy:  The briefs by the Human Rights Watch et al. and the Electronic Frontier Foundation et al. discuss the importance of YouTube and other UGC sites, such as Facebook and Twitter, to free speech and human rights, including recent events in places like Egypt, Tunisia, Iran, and elsewhere.
  • Rebutting the Content Industries' Claim that UGC Sites Are Causing Enormous Harm:  Two briefs respond to the claims by many of the opening round briefs by Viacom and its amici that "the sky is falling" because of YouTube and other UGC sites.  In sum, the content industries have been making such claims for over 100 years, and have uniformly been wrong.  See my brief on behalf of the Consumer Electronics Association, and Prof. Carrier's brief.
  • Filtering:  Two briefs supporting Viacom, by Audible Magic and Vobile, asserted that those companies' filtering technologies could detect allegedly infringing content.  A brief by Public Knowledge rebuts these assertions.  Among other things, filtering technologies can identify content (with both false positives and false negatives, see also my CEA brief); but filtering can't identify infringements.   In other words, a content filter isn't the same thing as an infringement filter.  Content filters can't identify any of the following:  stealth marketing; other authorized content; fair use of content; or de minimus use of content.
  • Inducement Liability:  The CCIA brief contains a detailed discussion of the issue of inducement liability.  (I don't necessarily agree with all of the analysis in this brief, but it nicely rebuts arguments that Viacom makes in this case.)
  • Statutory Analysis and Discussion of Case Precedent:  As Eric's post notes, several briefs discuss the statutory language and case precedent relevant to these appeals.  These include briefs by the IP and Internet Law Professors, eBay, EFF, and the National Venture Capital Association.  As to precedent, the NVCA brief interestingly notes how its VC members funded many of the defendants in previous cases, including Veoh, LoopNet, eBay, Amazon, and Photobucket.

    Final updates:  When this post was first filed, I included links to the amicus briefs as they existed at that time.  Since then, several amicus briefs have been re-filed to comply with the Second Circuit's arcane formatting rules.  (The rules actually make a lot of sense, but they are difficult to follow.)  I have since updated the above links to the re-filed briefs; this includes the briefs by Prof. Carrier, the National Consumers' League, eBay, and the NVCA.

    Techdirt has a detailed discussion of Professor Carrier's brief.


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