Sunday, December 12, 2010

Opening Briefs in Viacom v. YouTube and Premier League v. YouTube

Viacom v. YouTube is an important copyright case on appeal to the Second Circuit Court of Appeals (Appeal No. 10-3270).  A related case is a class action brought by The Football Association Premier League and others against YouTube, which is also on appeal (Appeal No. 10-3342).  For the purposes of this post, I'll just discuss the Viacom case; the claims in the Premier League case are similar, although there are some differences.

As summarized on EFF's case page, in 2007 Viacom sued YouTube, claiming that YouTube should be liable for its users' posting of Viacom's copyrighted videos on YouTube.  Although YouTube acts promptly to take down infringing videos once a copyright owner gives YouTube notice of infringements -- you doubtless have tried to look at a video on YouTube and have seen a message that the video was removed due to a copyright claim -- Viacom asserts that YouTube is liable for postings of infringing works anyway.  The potential damages are a billion dollars or more.

At issue is Section 512 of the Copyright Act, which is part of the Digital Millennium Copyright Act.  Subsection (c) of that statute gives an Internet service provider such as YouTube a defense to copyright claims, provided that it satisfies certain conditions.  One condition is that the ISP registers an agent for service of notifications of claimed infringements, and then acts promptly to remove infringements upon receipt of such notices.  There's no dispute that YouTube did that in the Viacom case; Viacom sent YouTube more than 100,000 takedown notices, which YouTube promptly complied with.  Section 512(c) is sometimes called the "DMCA safe harbor."

Viacom claims that YouTube isn't entitled to the "safe harbor" for three reasons that can be briefly summarized as follows: (1) YouTube's general knowledge that infringements occur on its website defeats the safe harbor under § 512(c)(1)(A); (2) YouTube receives "a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity," disqualifying YouTube's safe harbor under § 512(c)(1)(B); and (3) that "storage" in § 512 is limited to uploading of stored files only, not downloading of them by another user.  While all issues are being contested in the case, the most important issue is probably the first one.  Does an ISP lose its immunity under § 512 because it has "general" knowledge of infringements on its website (as Viacom and the Premier League argue), or is the safe harbor lost only if the ISP has specific knowledge of infringements that the website doesn't then remove (as YouTube argues)?  This is a very important distinction that affects all user-generated content on the Internet in general.  Most UGC sites are "generally" aware that some users post infringing material, so if "general" awareness subjected UGC sites to suit, they would probably have to stop operating.

On June 23, 2010, the district judge agreed with YouTube and granted YouTube summary judgment against Viacom and the Premier League.  The district court agreed that generalized knowledge isn't enough to defeat the safe harbor.  Discussions of that decision are here, here, here, here, and here.

Viacom and the Premier League have now filed their opening briefs in the Second Circuit.  Fifteen amicus briefs have also been filed (at least ones that I have found).  Techdirt has this discussion of the Viacom opening brief.  While under normal court procedure only the amicus briefs favoring Viacom and the Premier League were filed at this time, at least one of the amicus briefs filed so far favors affirmance of the summary judgment rulings, by the American Intellectual Property Law Association.  Techdirt discusses that brief here.

YouTube's opposition brief will likely be due on March 31, 2011, with amicus briefs supporting YouTube due a week later.  I was one of the co-authors of an EFF amicus brief supporting YouTube at the district court level, and expect that the EFF will file an amicus brief supporting YouTube on appeal.

UPDATE:  Here is Eric Goldman's analysis of the briefs. EFF's discussion is here.

Here are links to the briefs filed so far:

Plaintiffs' Opening Briefs:
Viacom's opening brief
Premier League's opening brief 

Amicus Briefs:
Brief of America Intellectual Property Law Association
Brief of Advance Publications et al
Brief of American Federation of Musicians et al
Brief of Audible Magic
Brief of BMI-ASCAP et al
Brief of BSA
Brief of CBS
Brief of Intellectual Property Law Professors
Brief of International Intellectual Property Institute
Brief of Matthew Spitzer et al
Brief of Microsoft-EA
Brief of MPAA
Brief of Stuart Brotman et al
Brief of Vobile
Brief of Washington Legal Foundation

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