In June 2010, the court
for the Southern Dist. of NY ruled in favor of YouTube by dismissing Viacom's
claims for copyright infringement. The court held that general knowledge was
not enough to bar YouTube from protection under the DMCA safe harbor provision.
It found the burden of protecting copyrighted material remains with the
copyright owner, regardless of whether the online service provider is aware of infringement
on its hosted websites. In this Analysis, Gail R. Manuguid, Janet Kim Lin and
Stephen D. Fisher discuss Viacom Int'l v.
2010 U.S. Dist. LEXIS 62829 (S.D.N.Y. June 23, 2010) [enhanced version available to lexis.com subscribers]. They
1. The DMCA's "Safe Harbor"
At the heart of this case is the scope of
the Digital Millennium Copyright Act's ("DMCA") "safe
harbor" provision, which protects OSPs, like YouTube, from copyright
liability if they promptly remove from their websites unauthorized work
following formal written request of a copyright owner.
2. General Knowledge of Infringement is
To qualify for the safe harbor, an OSP
must "act expeditiously" to remove infringing content if it has
"actual" knowledge of infringing activity or is aware of facts and
circumstances from which infringing activity is "apparent." According
to Viacom, YouTube was aware of the widespread infringement of Viacom's works
on YouTube and failed to take affirmative steps to remove such material.
Indeed, the court acknowledged that based on the parties' briefs, a jury could
find that YouTube was not only generally aware that copyright-infringing
materials were uploaded, but that it welcomed such content because it was
attractive to users. In addition, these users enhanced YouTube's income from
advertisers, resulting in a financial benefit attributable to the infringement.
3. Viacom Failed to Show That YouTube Had
"Actual" Knowledge of Infringement
The court ruled that despite the finding
that YouTube was generally aware of the infringing activity, YouTube was
entitled to protection under the safe harbor provision. In order to lose the
protection of the safe harbor, the defendant must be aware of "specific
and identifiable infringements of particular individual items" and fail to
act expeditiously to remove them upon notice. Mere knowledge of
"ubiquitous" infringement is not enough to "impose a duty on the
service provider to monitor or search its services for infringements."
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