Viacom v. YouTube, Part I

Last week, the Southern District of New York ruled in favor of YouTube in the Viacom case. In deciding Cross-Motions for Summary Judgment, the Court held that YouTube is protected under the “safe harbor” provision of section 512(c) of the Copyright Act.

See Opinion here.

While a lot of credit is given to YouTube for having removed the specific videos requested following the DMCA notice, there are some troubling aspects to this decision.

First, the critical question for the Court was whether the service provider has actual knowledge or “in the absence of such knowledge, is not aware of facts or circumstances from which infringing activity is apparent” is meant to be a general awareness of infringements or a specific infringement of individual items. (The quote is not from the opinion but from the actual statute 512(c)(1)(A)(ii).)

The Court then goes on to discuss the “red flag” test in the legislative history of the Senate and House Reports – “whether infringing activity would have been apparent to a reasonable person operating under the same or similar circumstances – an objective standard should be used.” (See Opinion at page 10.)

Later in the legislative history, an example of a red flag would be a directory that typically uses the terms “pirate” “bootleg” or other slang terms in their URL and header information to make their illegal purpose obvious to other Internet users. (See Opinion at page 12.) This avoids “discriminating judgments about potential copyright infringement from online editors and catalogers creating search information. (See Opinion at Page 13.)

The legislative history concludes that awareness “should typically be imputed to a directory provider only with respect to pirate sites or in similarly obvious and conspicuous circumstances, and not simply because the provider viewed an infringing site during the course of assembling the directory.” (See Opinion at Page 15.)

This leads the Court to the decision that there must be more than mere knowledge of infringement in general but specific and identifiable infringement for individual items. The Court relies on the Perfect 10 case regarding DMCA notification where the Court will refuse to shift the burden from copyright owner to provider. This gives the impression that the burden will never shift. This may produce a much more chilling effect than, I think, the Court may have intended. This gives copyright owners no incentive to provide their content online. I do believe that it is possible some people may label materials “pirated” but most people are smart enough to avoid such a keyword that would raise a “red flag.”

However, would the circumstances be different if Viacom and/or others did not allow their content to be reproduced on the Internet. Could the red flag and general and specific awareness be implied from the well-known fact that the content provider does not permit the reproduction of its material for media online?

Could the simple solution be a campaign informing the public and/or a specific letter to YouTube claiming that all episodes of Show X are not available on the Internet or streaming media? Any copies in said form are unauthorized infringing copies for which no user has permission. Would this be the criteria necessary for specific knowledge for any individual posting?