Even IP Lawyer Trade Group Thinks Viacom Is Wrong About Its DMCA Interpretation

from the expanding-the-law dept

As you might imagine, I rarely agree with the American Intellectual Property Law Association (AIPLA) on its positions. While there are plenty of "IP" lawyers who I know well and talk to frequently -- many of whom seem to agree with my position on things -- it's no secret that the belief that "IP is all good" and "more IP is better" tends to be a bit more common among such practitioners than the views in the other direction. In fact, if you asked me, I would have just assumed that the AIPLA was 100% behind Viacom in its lawsuit against Youtube/Google. So, consider me quite surprised that the main part of the AIPLA's amicus brief in Viacom's appeal of the YouTube case is actually siding with YouTube and saying that Viacom's argument (as we've said) goes way too far.

Specifically, the AIPLA points out that Viacom's belief that "general knowledge" of infringing content should disqualify safe harbors makes little sense, and is clearly not Congress' intention, as seen from the DMCA itself and the Congressional record:
AIPLA urges this Court to affirm the district court's holding that more than a generalized knowledge of infringement is required to deprive an Internet service provider ("ISP") of the protection of the safe harbor provisions of the Digital Millennium Copyright Act ("DMCA"). The district court correctly held that the DMCA requires either "actual knowledge" of specific instances of infringement, or awareness of "facts or circumstances" from which specific instances of infringing activity are apparent. Whether based on actual knowledge or awareness of facts or circumstances, the level of knowledge that is sufficient to strip the ISP of its protection under Section 512 of the Copyright Act, as amended by the DMCA is knowledge of specific instances of infringement. The district court's holding is consistent with the legislative history of the DMCA and relevant case law. AIPLA urges this Court to reject Viacom’s broad attempt to deprive Internet service providers of the benefits of the safe harbor provisions of the DMCA based on generalized knowledge that infringing activity is occurring on a site.
The AIPLA brief highlights how the Congressional record clearly shows that both the House and Senate said that "defective" DMCA notices need not be followed, and there should be no liability for not following such a notice. Yet, if Viacom's argument is correct, then a defective DMCA notice would still serve as "general knowledge" of infringement or a "red flag" that would require further investigation. Yet, both houses of Congress specifically rejected that position -- and with it Viacom's main argument.

There are two other parts of the AIPLA's brief which actually suggest points that ask the court to push back on two elements of the district court's summary judgment ruling, but those are smaller points compared to the "main event" question of whether or not general knowledge or specific knowledge are needed to trigger takedowns. It's surprising, but nice to see the AIPLA come out in favor of the only interpretation that makes sense to many of us: you can't be expected to police content if you haven't actually learned that it is, in fact, infringing.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    maclizard (profile), Dec 8th, 2010 @ 10:42am

    hmmm...

    If Viacom were to win their appeal would that not change the way AIPLA operates? Would it not change the precedence, causing AIPLA to then focus lawsuits on large companies with lawyers and money to defend themselves rather than individuals who have on choice but to bend?

     

    reply to this | link to this | view in thread ]

  2.  
    icon
    fogbugzd (profile), Dec 8th, 2010 @ 10:43am

    General Knowledge

    It seems to me that the DCMA safe harbor itself is about the "general knowledge" problem. By registering a site as a safe harbor the site owner of the site is acknowledging that infringing activities are taking place or likely taking place. If congress thought that general knowledge was a violation of copyright law, they would not have put a provision in the law that allowed companies to register as safe harbors.

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Anonymous Coward, Dec 8th, 2010 @ 10:47am

    Even broken clocks...

    are right twice a day... Unless they are digital and then they are never right.

     

    reply to this | link to this | view in thread ]

  4.  
    icon
    average_joe (profile), Dec 8th, 2010 @ 11:03am

    From the amicus brief: The district court correctly held that the DMCA requires either "actual knowledge" of specific instances of infringement, or awareness of "facts or circumstances" from which specific instances of infringing activity are apparent.

    But Viacom is arguing that YouTube was aware of facts or circumstances from which specific instances of infringing activity were apparent. Viacom is also arguing that YouTube received direct financial benefit directly attributable to infringement that it had the right and ability to control. Either one of those is sufficient for YouTube to lose their safe harbor under the plain language of the DMCA, and I think Viacom produced sufficient evidence of both. Viacom at the very least raised a genuine issue of material fact on those issues that precluded summary judgment, IMO. I will be genuinely surprised if the appeals court just affirms this.

     

    reply to this | link to this | view in thread ]

  5.  
    icon
    Mike Masnick (profile), Dec 8th, 2010 @ 11:15am

    Re:

    But Viacom is arguing that YouTube was aware of facts or circumstances from which specific instances of infringing activity were apparent.

    Specific instances of infringement... like the videos that Viacom itself uploaded and the sued YouTube over.

    That's the point you still have never addressed, claiming you don't see how it matters. But it's matters entirely, because it shows that there's simply NO WAY for YouTube to accurately know if the content is actually infringing in absence of a specific notice that it is. Otherwise, how does it know if the Viacom uploaded videos are infringing or not?

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Transbot9, Dec 8th, 2010 @ 11:19am

    Re:

    Can Viacom be held liable for Viacom's marketing department's contributing to the infringment by uploading their media to Youtube?

     

    reply to this | link to this | view in thread ]

  7.  
    icon
    Richard (profile), Dec 8th, 2010 @ 11:24am

    Re:

    Viacom is arguing that YouTube was aware of facts or circumstances from which specific instances of infringing activity were apparent.
    Can you name one specific infringement that Youtube was aware of?

    If such a thing existed it would surely be in the legal documentation.

    If Congress had intended that general awareness of infringement was enough to create liability then what purpose does the takedown notice mechanism serve?

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    PRMan, Dec 8th, 2010 @ 11:27am

    Re: Re:

    I think they should sue their marketing department for $6 billion. That would show them...

     

    reply to this | link to this | view in thread ]

  9.  
    icon
    Miles (profile), Dec 8th, 2010 @ 11:32am

    Re:

    "But Viacom is arguing that YouTube was aware of facts or circumstances from which specific instances of infringing activity were apparent."
    You seem to have missed the reason this argument failed because there's no way YouTube could be aware.

    In fact, one could even argue the filters used by YouTube prohibit legal right to Fair Use because many are so restrictive, personally owned copyright material can not be uploaded.

    It's an unbalanced system which neither side has a position to justify their actions and those who lose are the ones between both sides of the argument.

    In other words: everyone but Viacom or YouTube.

    I can't count the number of times a YouTube link has been removed due to infringement accusations.

    The only thing I can be thankful for is the recent changes to the YouTube take down notices which now appropriately target those who've made the request.

    It makes it easier to file counter-notices, to which is much more difficult for us rights holders because we don't have the financial resources to fight against blatant disregard to the rights we do have remaining.

    Viacom (et al) are nothing more than content controlling corporations hell bent on stripping all rights and making copyright indefinite.

    I truly feel sorry for schools in the future, under corporate control, which will send its children to gulags for drawing images of Mickey Mouse, so protected under copyright law, 150 lashings becomes the start of an arduous punishment campaign.

    "Intellectual Property" seems to be missing the core component of intelligence.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Dec 8th, 2010 @ 11:37am

    Re:

    If copyright infringement is so easy to recognize then why do so many people engage in it? Are they all wrong? Or maybe, just maybe, it isn't so easy to recognize.

     

    reply to this | link to this | view in thread ]

  11.  
    icon
    Josh in CharlotteNC (profile), Dec 8th, 2010 @ 11:41am

    Re: hmmm...

    AIPLA correctly recognizes that if Viacom wins, almost all user-generated content on the Internet would vanish. There would be no companies able to profit, and therefore no one to pay the legal fees.

     

    reply to this | link to this | view in thread ]

  12.  
    icon
    interval (profile), Dec 8th, 2010 @ 11:50am

    More Of Their Crap

    Its more of the same nonsense that IP owners want to foist off on the thinking public that says infringement should rise to the level of murder in the eyes of the law and people are stating to take notice and realize that its simply no where near that level.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Dec 8th, 2010 @ 1:43pm

    Re: Re:

    See "undisputed facts" taken from one of the many documents comprising the record before the district court:

    http://www.viacom.com/news/Viacom%20Summary%20Judgment%20Motion/Viacom%20Statement%20of%20 Undisputed%20Facts.pdf

    #40 is humorous in that two of the YouTube founders are chastizing via email the other founder for uploading "stolen" content to the new site.

     

    reply to this | link to this | view in thread ]

  14.  
    icon
    average_joe (profile), Dec 8th, 2010 @ 1:47pm

    Re: Re:

    Specific instances of infringement... like the videos that Viacom itself uploaded and the sued YouTube over.

    That's the point you still have never addressed, claiming you don't see how it matters. But it's matters entirely, because it shows that there's simply NO WAY for YouTube to accurately know if the content is actually infringing in absence of a specific notice that it is. Otherwise, how does it know if the Viacom uploaded videos are infringing or not?


    That's a great point, and we'll get into it when I have more time (my exams start tonight). This case is certainly a huge deal, and I look forward to hashing it out.

     

    reply to this | link to this | view in thread ]

  15.  
    icon
    average_joe (profile), Dec 8th, 2010 @ 1:49pm

    Re: Re: Re:

    See "undisputed facts" taken from one of the many documents comprising the record before the district court:

    http://www.viacom.com/news/Viacom%20Summary%20Judgment%20Motion/Viacom%20Statement%20of%20 Undisputed%20Facts.pdf

    #40 is humorous in that two of the YouTube founders are chastizing via email the other founder for uploading "stolen" content to the new site.


    Yes, thank you. I think is plenty of evidence in the record to support the claim that YouTube was "aware of facts or circumstances from which specific instances of infringing activity were apparent."

     

    reply to this | link to this | view in thread ]

  16.  
    icon
    Mike Masnick (profile), Dec 8th, 2010 @ 2:25pm

    Re: Re: Re:

    #40 is humorous in that two of the YouTube founders are chastizing via email the other founder for uploading "stolen" content to the new site.

    Of course, we actually explained this in a previous post. Viacom takes those statements out of context. They were not "stolen" as in copyright infringing, but "stolen" as in copied from other viral video sites...

    http://www.techdirt.com/articles/20100319/1237138636.shtml

    I love how Viacom defenders continue to use that one statement out of context, even though it's already been explained time and time again that it was out of context.

    You guys are so desperate that you have to keep misrepresenting what was actually happening. Sad.

     

    reply to this | link to this | view in thread ]

  17.  
    icon
    Richard (profile), Dec 8th, 2010 @ 3:24pm

    Re: Re: Re: Re:


    Yes, thank you. I think is plenty of evidence in the record to support the claim that YouTube was "aware of facts or circumstances from which specific instances of infringing activity were apparent."

    You need to read that document a bit more carefully.

    At no point is it clear that any of the Youtube people had clear and unequivocal evidence that any particular clip was infringing - only that some were commercially produced material that might be infringing.

    However it is clear that they would remove the material if they received a complaint.

    I really don't see what wě1 happen. what?
    someone from cnn sees it? he happens to be
    someone with power? he happens to want to
    take it down right away. he get in touch with
    cnn legaL. 2 weeks later, we get a cease &
    desist letter. we take the video down";


    Your belief that this document amounts to the specific evidence that I asked for is wishful thinking.

     

    reply to this | link to this | view in thread ]

  18.  
    icon
    average_joe (profile), Dec 8th, 2010 @ 7:55pm

    Re: Re: Re: Re:

    Of course, we actually explained this in a previous post. Viacom takes those statements out of context. They were not "stolen" as in copyright infringing, but "stolen" as in copied from other viral video sites...

    http://www.techdirt.com/articles/20100319/1237138636.shtml

    I love how Viacom defenders continue to use that one statement out of context, even though it's already been explained time and time again that it was out of context.

    You guys are so desperate that you have to keep misrepresenting what was actually happening. Sad.


    What about the rest of the facts in evidence? Finding one that arguably was taken out of context says nothing of the rest of them.

     

    reply to this | link to this | view in thread ]

  19.  
    icon
    average_joe (profile), Dec 8th, 2010 @ 8:44pm

    Re: Re:

    Specific instances of infringement... like the videos that Viacom itself uploaded and the sued YouTube over.

    That's the point you still have never addressed, claiming you don't see how it matters. But it's matters entirely, because it shows that there's simply NO WAY for YouTube to accurately know if the content is actually infringing in absence of a specific notice that it is. Otherwise, how does it know if the Viacom uploaded videos are infringing or not?


    OK, I've got some time now. YouTube can lose their safe harbor if they are "aware of facts or circumstances from which infringing activity is apparent." 17 U.S.C. 512(c)(1)(A). Above, I was quoting what the AIPLA said, but if you look to the statute it does not say "specific." I don't think the AIPLA added the word "specific" on accident. I think they're misstating the law intentionally. That's why they didn't use quotes for the "specific" part. Anyway, the district court ruled as a matter of law that YouTube lacked this knowledge. The court held that YouTube needed specific knowledge and that this knowledge could only come through takedown notices. This isn't what the DMCA says.

    The text of the statute does not require the item and location specificity that the district court said are required. Despite the court's conclusion otherwise, there is such thing as "red flag" knowledge. It just has to be red flag knowledge of something that it is likely infringing, and then the service provider has the duty to take action. YouTube ignored the red flags and then took no action. If the awareness of "facts or circumstances from which infringing activity is apparent" meant the same thing as specific awareness, then that section of the statute would be superfluous. It is fundamental to statutory interpretation that a law is to be interpreted such that no section is superfluous. In fact, such an interpretation in this case would make the preambular "in the absence of such actual knowledge" to be completely devoid of meaning. Such an interpretation makes no sense. Like it or not, "awareness" is an included alternative level of knowledge to "actual knowledge"--either one is sufficient under the plain meaning of the statute. The district court simply misreads the statute.

    The record is replete with evidence that YouTube was "aware of facts or circumstances from which infringing activity" was apparent. As to the argument that YouTube couldn't tell the videos Viacom uploaded from the one's that unauthorized users uploaded, I think it's a red herring. YouTube was aware of the fact that most of Viacom's videos on YouTube were infringing, and they did not act "expeditiously to remove, or disable access to, the material." 17 U.S.C. 512(c)(1)(A). For example, this email from YouTube cofounder Chad Hurley: "This user is starting to upload tons of 'Family Guy' copyrighted clips... I think it's time to start rejecting some of them. Any objections?" There are other emails where people at YouTube state their awareness of Viacom's IP being on YouTube without permission. YouTube knew about it, and they did not act to remove the material. Keep in mind that YouTube didn't have to know for sure whether something was infringing, they only had to know that it was likely to be so. YouTube's bad faith is further shown by the fact that Viacom even offered to help YouTube identify the infringing content, and YouTube refused.

    At the very least, there is a genuine issue of material fact as to YouTube's liability, and summary judgment was inappropriate.

     

    reply to this | link to this | view in thread ]

  20.  
    icon
    average_joe (profile), Dec 8th, 2010 @ 9:10pm

    Re: Re: Re: Re: Re:

    At no point is it clear that any of the Youtube people had clear and unequivocal evidence that any particular clip was infringing - only that some were commercially produced material that might be infringing.

    However it is clear that they would remove the material if they received a complaint.


    The undisputed facts show that YouTube was "aware of facts or circumstances from which infringement was apparent." The statute does not require there to be item-specific knowledge, and simply removing items after receiving a complaint is not necessarily sufficient to avoid losing safe harbor. That's just not what the DMCA says.

    Your belief that this document amounts to the specific evidence that I asked for is wishful thinking.

    And your belief that the DMCA requires such knowledge is erroneous and irrelevant. See 17 U.S.C. 512(c)(1)(A).

     

    reply to this | link to this | view in thread ]

  21.  
    icon
    Mike Masnick (profile), Dec 8th, 2010 @ 11:17pm

    Re: Re: Re:

    I don't think the AIPLA added the word "specific" on accident. I think they're misstating the law intentionally.

    That's quite a claim. I'm curious (genuinely) why you think the AIPLA -- a group who normally sides with your position on things -- would do that?

    The text of the statute does not require the item and location specificity that the district court said are required.

    But how do you respond to the points about how defective DMCA notices do not require any further action.

    What it comes down to, is that I can't see how you can both say that only valid DMCA notices matter *and* that red flag infringement loses you liability. The two simply cannot work together.

    In the end, I think what happened is that when Congress (well, the labels/studios...) wrote this part of the DMCA were thinking about two very different scenarios. The "red flag" was not talking about a situation like YouTube at all, but now Hollywood is trying to use it to expand the DMCA and effectively remove the safe harbors they agreed to only after a long fight with the ISPs. If I were thinking evilly, I'd suggest that the "red flags" language was put in on purpose to undermine the safe harbors, but I'm not sure the entertainment industry lobbyists are really that clever.

    Either way, if your interpretation is correct, then the safe harbors are effectively superfluous as well. So. That leaves us in a troubling spot. You claim we can't interpret the law in a way that leaves one section superfluous, but either way that happens.

    In that case, I think you have to go with the interpretation that is actually *reasonable* and that's the one where the safe harbor applies. And while you dismiss the legit videos being uploaded, I think you are doing so much too quickly, without recognizing how ridiculous that position is. The chilling effects of such a position makes it effectively impossible to run a user-generated content platform.

     

    reply to this | link to this | view in thread ]

  22.  
    icon
    average_joe (profile), Dec 9th, 2010 @ 7:06am

    Re: Re: Re: Re:

    That's quite a claim. I'm curious (genuinely) why you think the AIPLA -- a group who normally sides with your position on things -- would do that?

    In all fairness, I think they were just repeating what the district court said. Of course, I think the district court was wrong. And for me, it's not about sides. In the district court hearing, I read the motions for summary judgment on both sides and then I read both responses to those motions. I just thought that Viacom made their case. At the very least they raised some genuine issues about whether YouTube had sufficient knowledge of the infringement under the statute and whether YouTube's response was sufficient. Don't get me wrong... I love YouTube and I use it all the time. I've uploaded hundreds of family videos to there to share with my family. I just think YouTube fostered an environment of infringement, willfully turning a blind eye so they could sell it off to the highest bidder.

    But how do you respond to the points about how defective DMCA notices do not require any further action.

    I think if someone issues a defective notice, the burden is on them to resubmit the notice correctly.

    What it comes down to, is that I can't see how you can both say that only valid DMCA notices matter *and* that red flag infringement loses you liability. The two simply cannot work together.

    In the end, I think what happened is that when Congress (well, the labels/studios...) wrote this part of the DMCA were thinking about two very different scenarios. The "red flag" was not talking about a situation like YouTube at all, but now Hollywood is trying to use it to expand the DMCA and effectively remove the safe harbors they agreed to only after a long fight with the ISPs. If I were thinking evilly, I'd suggest that the "red flags" language was put in on purpose to undermine the safe harbors, but I'm not sure the entertainment industry lobbyists are really that clever.

    Either way, if your interpretation is correct, then the safe harbors are effectively superfluous as well. So. That leaves us in a troubling spot. You claim we can't interpret the law in a way that leaves one section superfluous, but either way that happens.

    In that case, I think you have to go with the interpretation that is actually *reasonable* and that's the one where the safe harbor applies. And while you dismiss the legit videos being uploaded, I think you are doing so much too quickly, without recognizing how ridiculous that position is. The chilling effects of such a position makes it effectively impossible to run a user-generated content platform.


    That's an interesting position, but I think it creates a situation where the DMCA just turns into a haven for pirates. That certainly was not what Congress intended, and it's certainly not what the DMCA says. I don't think this renders the safe harbors superfluous at all. The whole idea is to create safe harbors for innocent service providers. Not-so-innocent service providers who turn a blind eye to massive amounts of infringement cannot simply use their DMCA agent as a shield. I don't this makes it impossible to run a legit UGC platform, in fact, I think YouTube is doing just that right now. The problem is, that's not what they were doing when they first set up shop.

     

    reply to this | link to this | view in thread ]

  23.  
    icon
    Mike Masnick (profile), Dec 9th, 2010 @ 10:54am

    Re: Re: Re: Re: Re:

    I think if someone issues a defective notice, the burden is on them to resubmit the notice correctly.


    That doesn't answer the question. A defective DMCA notice will most likely still provide enough info for a site to do a takedown -- and yet, it's clear that you don't have to. So... there's a problem with the law. It disagrees with itself.

    That's an interesting position, but I think it creates a situation where the DMCA just turns into a haven for pirates. That certainly was not what Congress intended, and it's certainly not what the DMCA says.

    We're just going to go around in circles on this. Your interpretation means there's no safe habors, and that's certainly not what Congress intended and it's certainly not what the DMCA says.

    he whole idea is to create safe harbors for innocent service providers. Not-so-innocent service providers who turn a blind eye to massive amounts of infringement cannot simply use their DMCA agent as a shield.

    Again, how do you turn a "blind eye" to infringement when you have no way of knowing for sure if the work is infringing?

    This is what gets me about the Viacom position. People who support seem to think it's "obvious" what's infringing. That's simply not true. While this is about Australian copyright law, I'll repeat what the judge said in the recent iiNet decision, which I think is rather compelling on this issue:


    Regardless of the actual quality of the evidence gathering of DtecNet, copyright infringement is not a straight 'yes' or 'no' question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether iiNet users, and how often iiNet users, infringe copyright by use of the BitTorrent system. The respondent had no such guidance before these proceedings came to be heard.


    Putting the burden on a third party to determine what is and what is not infringing simply makes no logical sense.

    When you reach a situation like that, the laws are supposed to put the burden on the party where it makes the most sense. And let's be honest here: who is likely to have a better understanding if a particular work is infringing: the hosting company or the copyright holder? I'd argue the copyright holder.

    I don't this makes it impossible to run a legit UGC platform, in fact, I think YouTube is doing just that right now.

    If that's true, then you're arguing that the DMCA has text that requires a filtering system. Can you point to language that supports that? I can't find it.

     

    reply to this | link to this | view in thread ]

  24.  
    icon
    average_joe (profile), Dec 9th, 2010 @ 12:17pm

    Re: Re: Re: Re: Re: Re:

    That doesn't answer the question. A defective DMCA notice will most likely still provide enough info for a site to do a takedown -- and yet, it's clear that you don't have to. So... there's a problem with the law. It disagrees with itself.

    Sorry I didn't answer the question. I didn't really understand what it had to do with Viacom v. YouTube. I see the point you're making. I think a defective takedown can be interpreted a couple of different ways. Whether it adds to the service provider's level of knowledge or not would have to be determined on a case by case basis. With YouTube, there was more knowledge than just faulty takedown notices.

    We're just going to go around in circles on this. Your interpretation means there's no safe habors, and that's certainly not what Congress intended and it's certainly not what the DMCA says.

    And yet YouTube certainly has safe harbor now, even with my interpretation. They just didn't back then. Now they're trying to play by the rules. Back then they turned a blind eye.

    Again, how do you turn a "blind eye" to infringement when you have no way of knowing for sure if the work is infringing?

    The DMCA does not require you to know for sure. The infringement can be apparent, based on facts or circumstances. Viacom showed that YouTube had such knowledge. At the very least, they showed it to be a question of fact to be decided at a trial.

    This is what gets me about the Viacom position. People who support seem to think it's "obvious" what's infringing. That's simply not true. While this is about Australian copyright law, I'll repeat what the judge said in the recent iiNet decision, which I think is rather compelling on this issue:

    Regardless of the actual quality of the evidence gathering of DtecNet, copyright infringement is not a straight 'yes' or 'no' question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether iiNet users, and how often iiNet users, infringe copyright by use of the BitTorrent system. The respondent had no such guidance before these proceedings came to be heard.

    Putting the burden on a third party to determine what is and what is not infringing simply makes no logical sense.

    When you reach a situation like that, the laws are supposed to put the burden on the party where it makes the most sense. And let's be honest here: who is likely to have a better understanding if a particular work is infringing: the hosting company or the copyright holder? I'd argue the copyright holder.


    Once they have actual or apparent knowledge, the DMCA shifts the burden to them by design. That's the balance Congress laid out. They don't have to be perfect, they just can't turn a blind eye. They have to make an effort in good faith. YouTube didn't do that.

    If that's true, then you're arguing that the DMCA has text that requires a filtering system. Can you point to language that supports that? I can't find it.

    I'm not arguing that. Implementing technological measures helps to show you're on the right side of the safe harbor, but nothing in the DMCA requires them.

    I just read through the AIPLA brief, and I think they're making a mistake in saying that Viacom is asking for there to be a general knowledge level of awareness that would make service providers lose their safe harbor. I don't think that's what Viacom is asking for at all. They are saying that YouTube had general knowledge plus more. Of course general knowledge without more is insufficient. The DMCA says that either actual or apparent knowledge will suffice, and that's all Viacom wants the court to enforce.

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    Yuhong Bao, Dec 9th, 2010 @ 12:36pm

    Re: Re: Re: Re: Re: Re:

    Most importantly, even if YouTube did really turn a black eye to specific infringement, it still would not excuse Viacom's attempt to reinterpret the DMCA, and vice versa.

     

    reply to this | link to this | view in thread ]

  26.  
    icon
    Richard (profile), Dec 11th, 2010 @ 11:13am

    Re: Re: Re: Re: Re: Re:

    The statute does not require there to be item-specific knowledge
    In which case the statute is garbage.

    Also - if those who framed the statue believed what you say then they would not have invented the DMCA notification process.

     

    reply to this | link to this | view in thread ]

  27.  
    icon
    Richard (profile), Dec 11th, 2010 @ 11:18am

    Re: Re: Re: Re: Re: Re:

    The statute does not require there to be item-specific knowledge
    How are they supposed to act without item specific knowledge?

     

    reply to this | link to this | view in thread ]

  28.  
    icon
    Richard (profile), Dec 11th, 2010 @ 11:23am

    Re: Re: Re: Re: Re: Re:

    And your belief that the DMCA requires such knowledge is erroneous and irrelevant. See 17 U.S.C. 512(c)(1)(A).

    I read the word of that piece of law and I do not see any reason to change my belief.

    I can only conclude that your understanding of the English language is defective.

     

    reply to this | link to this | view in thread ]

  29.  
    icon
    average_joe (profile), Dec 11th, 2010 @ 11:32am

    Re: Re: Re: Re: Re: Re: Re:

    In which case the statute is garbage.

    Have you read the statute? It's plain meaning is about as clear as can be:

    "A service provider shall not be liable . . . if the service provider - (A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing; (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material . . . ." 17 U.S.C. 512(c)(1)


    There are clearly two levels of knowledge that trigger the duty to act "to remove, or disable access to, the material": (1) "actual knowledge," and (2) "in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent."

    The statute could not be any more clear on this point. Courts that have applied it have said the same.

    Also - if those who framed the statue believed what you say then they would not have invented the DMCA notification process.

    That is a non sequitur.

     

    reply to this | link to this | view in thread ]

  30.  
    icon
    average_joe (profile), Dec 11th, 2010 @ 11:37am

    Re: Re: Re: Re: Re: Re: Re:

    How are they supposed to act without item specific knowledge?

    The idea is quite simple. One type of knowledge is actual knowledge, based on direct evidence. Another type is apparent knowledge, which is based on indirect evidence. It's the idea of constructive knowledge. It's what you knew or should have known. This means that you cannot be willfully blind. Willful blindness is the same as knowledge in copyright law.

    How are they supposed to act? Simple. They are supposed to act in good faith. What they can't do is do nothing when faced with such knowledge. Doing nothing is acting in bad faith, and the DMCA does not allow bad faith actors to moor in its safe harbors.

     

    reply to this | link to this | view in thread ]

  31.  
    icon
    average_joe (profile), Dec 11th, 2010 @ 11:40am

    Re: Re: Re: Re: Re: Re: Re:

    I read the word of that piece of law and I do not see any reason to change my belief.

    I can only conclude that your understanding of the English language is defective.


    Oh, really? How do you interpret this: "in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent"? Have you read any caselaw on how courts interpret it? Have you read any of the congressional reports from when they drafted it? Perhaps you should brush up on those things before you claim my understanding of English is defective. And if you're going to dismiss me with such a childish response, I'll not waste another second on you.

     

    reply to this | link to this | view in thread ]

  32.  
    icon
    Richard (profile), Dec 11th, 2010 @ 11:57am

    Re: Re: Re: Re: Re: Re: Re: Re:

    From your law reference

    upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

    Clearly the knowledge involved (the subject of this section)must be sufficient to allow the service provider to remove or disable access to the material.

    Have you read any caselaw on how courts interpret it? Have you read any of the congressional reports from when they drafted it? Perhaps you should brush up on those things before you claim my understanding of English is defective.

    Perhaps you could actually provide a specific argument rather than trying to assert some kind of vague authority based on the subject of your studies...

     

    reply to this | link to this | view in thread ]

  33.  
    icon
    Richard (profile), Dec 11th, 2010 @ 12:00pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    The idea is quite simple. One type of knowledge is actual knowledge, based on direct evidence. Another type is apparent knowledge, which is based on indirect evidence. It's the idea of constructive knowledge. It's what you knew or should have known. This means that you cannot be willfully blind. Willful blindness is the same as knowledge in copyright law.
    Your distinction relates to the manner of obtaining knowledge rather than to the type of knowledge obtained - which must still be sufficient enough to allow action.

     

    reply to this | link to this | view in thread ]

  34.  
    icon
    average_joe (profile), Dec 11th, 2010 @ 12:16pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Clearly the knowledge involved (the subject of this section)must be sufficient to allow the service provider to remove or disable access to the material.

    Nobody denies that.

    Perhaps you could actually provide a specific argument rather than trying to assert some kind of vague authority based on the subject of your studies...

    That's fine. But drop the childish insults about my ability to understand English. I'll get you started if you want to read it for yourself. Columbia Picture v. Fung: http://www.ipinbrief.com/wp-content/uploads/2010/10/Columbia-Pictures-v-Fung.pdf

    In order to obtain safe harbor, a defendant cannot have knowledge of ongoing infringing activities. This "knowledge" standard is defined as "actual knowledge" or "willful ignorance." According to the widely cited House and Senate Report on the law, "if the service provider becomes aware of a 'red flag' from which infringing activity is apparent, it will lose the limitation of liability if it takes no action." H.R. Rep. 105-551(II), at 53; see also Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1114 (9th Cir. 2007). The Congressional Report notes that the service provider is only liable if it "turned a blind eye to 'red flags' of obvious infringement." H.R. Rep. 105-551(II), at 57. Other courts have applied this test as requiring "willful ignorance of readily apparent infringement." UMG Recordings Inc. v. Veoh Networks Inc., __ F. Supp. 2d __, 2009 WL 3422839, at *7 (C.D. Cal. 2009) (citing Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1108 (W.D. Wash. 2004)).


    If you want to learn more, just read the cases cited in that quote. That's how I learn. I read one case, and then I read the cases cited in that case, and so on.

     

    reply to this | link to this | view in thread ]

  35.  
    icon
    average_joe (profile), Dec 11th, 2010 @ 12:17pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Your distinction relates to the manner of obtaining knowledge rather than to the type of knowledge obtained - which must still be sufficient enough to allow action.

    And you have this strange notion that it's somehow impossible to act on knowledge that was obtained indirectly.

     

    reply to this | link to this | view in thread ]

  36.  
    icon
    Richard (profile), Dec 11th, 2010 @ 12:29pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material

    Clearly the knowledge or awareness must be sufficiently specific to enable action. Otherwise the statute would be nonsense. I agree that the statue is clear.

    "Also - if those who framed the statue believed what you say then they would not have invented the DMCA notification process."

    That is a non sequitur.


    No it isn't. Let me explain.

    If those who wrote the law believed that a service like youtube should disable access to all material that it had some vague suspicion about then there would have been no need for a very specific takedown procedure.

    In fact by your argument all record shops that stocked George Harrison's "My sweet Lord" should be liable any who stocked Deep Purple's "Black Night" should be liable too. Because it is statistically inevitable that a proportion of the records on sale will have songs on them that infringe some copyright or other.

    No - the fact is that the law has always required specific knowledge to create liability - the DMCA merely restates this general principle.

    So I ask you if youtube were aware that (say) 5% of the videos on their site are infringing - but don't know which ones - how are they supposed to proceed (in your opinion) to avoid liability?

     

    reply to this | link to this | view in thread ]

  37.  
    icon
    Richard (profile), Dec 11th, 2010 @ 12:31pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    nd you have this strange notion that it's somehow impossible to act on knowledge that was obtained indirectly.

    No I don't - if specific knowledge is obtained indirectly then you can act on it. The point is that the knowledge in this case is not specific. It is the nature of the knowledge itself that matters - how it was obtained is irrelevant.

     

    reply to this | link to this | view in thread ]

  38.  
    icon
    average_joe (profile), Dec 11th, 2010 @ 12:35pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    If those who wrote the law believed that a service like youtube should disable access to all material that it had some vague suspicion about then there would have been no need for a very specific takedown procedure.

    The statute does not say "vague suspicion." Those are your words. There is the takedown procedure, and there is the duty to act in the face of actual or apparent knowledge. The two are not mutually exclusive.

    No - the fact is that the law has always required specific knowledge to create liability - the DMCA merely restates this general principle.

    The law requires either actual knowledge or apparent knowledge. I don't understand why you think apparent knowledge is somehow not actionable.

    So I ask you if youtube were aware that (say) 5% of the videos on their site are infringing - but don't know which ones - how are they supposed to proceed (in your opinion) to avoid liability?

    You're confusing general knowledge with apparent knowledge. General knowledge, without more, does not make them lose their safe harbor. Apparent knowledge, which is general knowledge PLUS MORE, is a different story.

    Have you read the case I linked for you? Have you read the cases mentioned in that case? Let's chat more after you have. I have work to do.

     

    reply to this | link to this | view in thread ]

  39.  
    icon
    average_joe (profile), Dec 11th, 2010 @ 12:37pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    No I don't - if specific knowledge is obtained indirectly then you can act on it. The point is that the knowledge in this case is not specific. It is the nature of the knowledge itself that matters - how it was obtained is irrelevant.

    The knowledge was sufficient to trigger the duty to take action. YouTube chose to turn a blind eye.

    We're going in circles at this point. Go ahead and get the last word.

     

    reply to this | link to this | view in thread ]

  40.  
    icon
    Richard (profile), Dec 11th, 2010 @ 12:48pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    I see the words but somehow they don't seem to mean what you think they mean. To clear this up I think we need to be more specific.

    It seems to me that, on your interpretation, a site like youtube would really not be possible. The problem is that whether a piece of content is infringing depends on whether the person who uploaded it was the copyright holder - or had authorisation from said copyright holder - and there is no way to establish that from the material that is uploaded.

    Now in recent years Google has instituted the contentID system - but that only solves the problem in respect of major corporate rightsholders. After all the law doesn't put such rightsholders into a special position so legally contentID has not really changed the situation..

    I have uploaded exactly one video to youtube

     

    reply to this | link to this | view in thread ]

  41.  
    icon
    Richard (profile), Dec 11th, 2010 @ 12:51pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    The knowledge was sufficient to trigger the duty to take action. YouTube chose to turn a blind eye.

    Exactly which videos should they have taken down?

     

    reply to this | link to this | view in thread ]

  42.  
    icon
    Richard (profile), Dec 11th, 2010 @ 12:55pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    If the "PLUS MORE" that you refer to includes the exact identity of a video that is definitely infringing theclearly they should have acted - but I don't see such a thing in the case documentation and clearly the district court didn't either - or they would have surely ruled differently.

     

    reply to this | link to this | view in thread ]

  43.  
    icon
    Richard (profile), Dec 11th, 2010 @ 12:58pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    - continues..

    and they can have no way of knowing that it is mine to upload - so how should they proceed in respect of it?

     

    reply to this | link to this | view in thread ]

  44.  
    icon
    average_joe (profile), Dec 11th, 2010 @ 1:00pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Despite what you may think of my ability to comprehend English, I know what you're getting at. The simple fact is that the record is filled with examples of YouTube having apparent knowledge of infringement that they chose to do nothing about. This knowledge was more than a generalized knowledge. This knowledge was specific enough that they could have taken action if they wanted to. Obviously if the knowledge was so vague that they couldn't possibly done anything about it then that would be a different story. Obviously that's not the standard. That would be stupid.

    Have you read through the statement of facts in the case? Have you read the motions on both sides? I want you to figure this out for yourself. Pretend you're YouTube and you know what they know. Pretend too you have a duty to act in good faith in the face of your knowledge. What would you do? They did nothing, and that was not the legitimate answer.

    Have a great afternoon, Richard.

     

    reply to this | link to this | view in thread ]

  45.  
    icon
    average_joe (profile), Dec 11th, 2010 @ 1:09pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    It seems to me that, on your interpretation, a site like youtube would really not be possible. The problem is that whether a piece of content is infringing depends on whether the person who uploaded it was the copyright holder - or had authorisation from said copyright holder - and there is no way to establish that from the material that is uploaded.

    And yet under my interpretation YouTube is acting within the law now. They just weren't back then. YouTube does not have to check for whether or not every single upload is legit. They do not have a duty to police their site. What they do have is a duty to act when they have actual or apparent knowledge of infringement. Once they have that knowledge, they must act.

    Now in recent years Google has instituted the contentID system - but that only solves the problem in respect of major corporate rightsholders. After all the law doesn't put such rightsholders into a special position so legally contentID has not really changed the situation..

    ContentID has changed the situation considerably. By implementing such systems YouTube is taking action and showing their good faith. You must keep in mind that YouTube's actions don't have to be perfect. They just have to try.

     

    reply to this | link to this | view in thread ]

  46.  
    icon
    Richard (profile), Dec 11th, 2010 @ 3:18pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    OK - I'm not a law student so it is unprofitable for me to spend that amount of time on such detail - however the district court examined (and list) a substantial amount of the kind of evidence you quote and they concluded
    "The tenor of the foregoing provisions is that the
    phrases “actual knowledge that the material or an activity” is
    infringing, and “facts or circumstances” indicating infringing
    activity, describe knowledge of specific and identifiable
    infringements of particular individual items. Mere knowledge of
    prevalence of such activity in general is not enough."

    Which is exactly
    my point.

     

    reply to this | link to this | view in thread ]

  47.  
    icon
    average_joe (profile), Dec 11th, 2010 @ 3:46pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    I've read the decision, trust me. Considering how complicated this case was, it's amazing how terse the district court's opinion was. How many pages was him just quoting congressional reports rather than giving analysis? It's alarming.

    It appears to me that the district court simply made a choice to maintain the status quo and punt it to the appeals court. That sort of thing happens all the time. I think the district court made several reversible errors and I will be stunned if this is simply affirmed above. We'll see.

     

    reply to this | link to this | view in thread ]

  48.  
    icon
    Richard (profile), Dec 12th, 2010 @ 6:51am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Well since no one else agrees with your line I would be surprised to see anything other than a re-affirmation of the district court decision.

    The AIPLA don't agree with you - and even Viacom doesn't really agree with you - since, if they believed Youtube was liable for substantial infringement back in 2005-6, they wouldn't have tried to buy the site.
    Of course, as a lawyer you can make an argument for any case (that's your profession) but surely you must be aware how weak that case is.

     

    reply to this | link to this | view in thread ]

  49.  
    icon
    average_joe (profile), Dec 12th, 2010 @ 7:19am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    It is simply wrong to state that "no one else agrees with" me, and my case is not nearly as weak as you think. Thanks for laying in with the put downs again today. I will not waste any more time on you.

     

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This