Published by LawTechie - April 22, 2013 - LawTechie

Internet lawExactly one year ago the 2nd Circuit reversed YouTube’s sound defeat of Viacom by sending the case back to the District Court with instructions that the court should reconsider whether Viacom has raised enough evidence of YouTube’s complicity in intellectual property infringement on its website to disqualify YouTube from DMCA Section 512(c) safe harbor immunity.

I thought this was interesting because the 2nd Circuit seemed to imply that in order to assert the 512(c) safe harbor, the defendant had the burden of proving that it was not aware that its site was being used for intellectual property infringing purposes. This would obviously place a heavy and expensive burden on the user generated content (UGC) community which, apart from YouTube, is comprised mostly of start-ups.

Except then Viacom admitted that “[i]t has now become clear that neither side possesses the kind of evidence that would allow a clip-by-clip assessment of actual knowledge.” Woops.

So now the District Court has, hopefully, decisively ruled that there is no evidence of YouTube’s complicity in IP infringement:

There is no evidence that YouTube induced its users to submit infringing videos, provided users with detailed instructions about what content to upload or edited their content, prescreened submissions for quality, steered users to infringing videos, or otherwise interacted with infringing users to a point where it might be said to participated in their infringing activity.

Therefore, YouTube is immune via 512(c) safe harbor. Of course Viacom has promised to appeal, again.

My colleague Eric Goldman wisely points out in his detailed analysis of the case that the Circuit rulings are making the 512 safe harbors increasingly messy to invoke by tacking on more and more factors that the courts must analyze. This does seem to cut a bit against what seems to be clear legislative intent to grant providers immunity, via the DMCA, against these sorts of claims (and to save them from wasting money on just this type of never-ending litigation).

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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