Thursday, July 8, 2010

Viacom v. YouTube, Part II

Last week Part I of the Copyright Chronicle's discussion of the Viacom v. YouTube opinion covered YouTube's protection under the "safe harbor" provision of §512(c) the Copyright Act and the red flag test to determine when facts or circumstances of infringing activity is apparent.

Part II discusses the Court's analogies to Tiffany v.Ebay and Grokster in its opinion.

The district court's opinion makes 2 analogies which are troubling. The first is the correlation to the Tiffany v. Ebay decision in the Second Circuit and the second is the correlation between Grokster (and related cases) and YouTube.

The Ebay Analogy

Starting on page 18 of the Viacom decision, the Court discusses the recent Second Circuit decision in Tiffany v. Ebay. Ebay was found not liable for contributory infringement when a significant number of the TIFFANY goods sold on its website were found to be counterfeit. The Court compares Ebay’s generalized notice that some of the Tiffany products sold on Ebay are counterfeit with YouTube and similarly decides that YouTube is not liable for infringement. However, there are distinguishing facts and circumstances.

First, unlike eBay, YouTube has control over the infringing material. eBay may sell goods through its website; however, eBay itself never had possession, custody or control over the goods themselves. eBay has no way of inspecting or reviewing the goods to determine whether the goods are fake or real. (Although, eBay’s level of promotion and general knowledge regarding counterfeits of Tiffany products on its website may raise a question regarding false advertising versus fair use.)

YouTube does have possession, custody and control over the submissions of users. (YouTube requires that videos posted to its website be uploaded to its servers.) Viacom had evidence that YouTube monitors the content of its website. See Page 39 and footnote 20 of Viacom’s Opposition to YouTube’s Motion for Summary Judgment and YouTube’s Answer to the First Amended Complaint at ¶ 39:
“Defendants admit that the Terms of Use contain certain content-based restrictions on the types of videos users may upload and store on the service, and that YouTube reserves the right to remove from the service material uploaded in violation of YouTube’s Terms of Use.”
The Court quickly brushes aside YouTube’s “monitoring” as defensible as part of providing online service citing 17 U.S.C. § 512(m)(1) and monitoring for cataloging or editor review to provide information location tools under 17 U.S.C. § 512(d). See Pages 14 and 16.

However, YouTube’s affirmative step of reviewing video posts for content should present not only a question of fact (the case was decided on summary judgment), but also a different analysis than eBay. The standard must be raised for an internet service provider who monitors and reviews the content. YouTube chooses the content it wants to make available on its website.

Unlike eBay, YouTube knows what goes up on its website. While there is apparently less monitoring now, it does not change the fact that YouTube specifically monitored the content being posted for more than mere categorization. See Footnote 20 of Viacom’s Opposition to YouTube’s Motion for Summary Judgment.

As alleged in the Complaint, YouTube was actively looking for and removing pornography from its website. If such content based decisions were being made by YouTube, YouTube is more than an online service provider and merely adhering to the safe harbor provisions is a cop out.

A higher standard must be applied when content is being reviewed in the first instance and more than for references to “pirating,” as proposed by the Court’s decision as a red flag for copyright infringement. It could not be Viacom’s burden under these circumstances to know which specific videos were monitored. YouTube is in complete control of the videos and the decisions after reviewing the content of its posts – both general and specific. (If YouTube does not keep records or tracking of the specific videos reviewed for content, how could YouTube prove that their knowledge was only general? Again this is another instance of a factual inquiry which should not have been resolved at summary judgment.)

While the Court takes some solace in the success of the notice and takedown provisions under the DMCA by claiming that the problem is fixed after notification to YouTube, it is of little solace to the copyright content owners whose exclusive rights and work value is already diminished.

Perhaps fittingly and unwittingly, in quoting the eBay decision, there is an indication that there is a solution for Viacom and other content providers: “Some contemporary knowledge of which particular listings are infringing or will infringe in the future is necessary.” See Page 20.

Perhaps, the proposal in the previous posting that Viacom could put everyone on general notice (and perhaps YouTube on specific notice) that none of its content is permitted on the Internet to be streamed and provided an indicator (such as the CBS eye or Comedy Central logo in the corner) may appropriately satisfy the Second Circuit’s requirement for liability.

The Grokster Analogy

The Court’s analogy between Grokster, Fung, Lime Group, and the infamous Napster cases seems to make a better case that Napster and other peer file-sharing website may have been simply before their time and as the law catches up, there may be different results. The Court relies heavily on the statement of Viacom’s General Counsel that the behaviors of Grokster and YouTube are not the same. But I am not sure how this matters or of the complete context of this statement.

In distinguishing YouTube from Grokster, the Court finds that Grokster’s conduct did “not comport with that of a service provider who furnishes a platform on which its users post and access all sorts of materials as they wish, while the provider is unaware of its content, but identifies an agent to receive complaints of infringement, and removes identified material when he learns it infringes.” See Page 23.

Given the broad definition applied to service providers (which would include YouTube), it is difficult to say that Grokster (and for that matter Napster) was not a service provider. Grokster and Napster provided a platform for the exchange of information online. Napster, at its height, was unlikely to be aware of (or even capable of ascertaining) all of the content posted on its website. There is also a clear argument to be made that Grokster had generalized knowledge similar to YouTube. The difference then is really that Grokster and Napster did not have complaint departments and did not or could not remove specifically identified information.

I think that analogizing YouTube to Napster and Grokster and their progeny may have unintended ramifications. It would seem all you need is a DMCA notice and takedown policy and Napster, in its previous form, would still be around today.

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