YouTube's Reply In Viacom Case Demolishes Each Of Viacom's Key Arguments
from the good-luck,-viacom dept
Congress crafted such a “high bar for finding ‘red flag’ knowledge” because it recognized that it is challenging for service providers to distinguish infringing from non-infringing material. UMG II, 665 F. Supp. 2d at 1111. No red flag exists, therefore, where circumstances leave uncertain whether the material is protected by copyright at all, or whether a particular use is licensed or, if unlicensed, a fair use. H.R. Rep. 105-551(II), at 57-58. A service provider has no “investigative duties” to make such determinations. CCBill, 488 F.3d at 1114. Indeed, “if investigation of ‘facts and circumstances’ is required to identify material as infringing, then those facts and circumstances are not ‘red flags.’” UMG II, 665 F. Supp. 2d at 1108.The filing also goes through many of the arguments we've seen before, including debunking the simply ridiculous claim from Viacom and its supporters that knowing that some people could use the service for infringing purposes means a loss of safe harbors. If that's the case, then there are no safe harbors. The filing also notes that, contrary to the "straw man" suggested by Viacom, saying that a service provider needs specific knowledge does not mean that the red flag provisions are meaningless. It just means that YouTube must have specific knowledge that the works were infringing, and the court reasonably established that YouTube did not have that with the clips that Viacom was complaining about (in part because even Viacom wasn't always sure which clips were infringing, and which it had uploaded itself).
There is no room here for an approach that would convert generalized information that unspecified infringement is occurring somewhere into red-flag knowledge. Red flags, instead, are necessarily specific: they indicate unmistakably that a given piece of material or a given activity using that material is infringing. And they create an obligation for the service provider to expeditiously remove that particular material. That does not render red-flag knowledge duplicative of actual knowledge. The red-flag provision does independent work, establishing that a service provider can lose DMCA protection by failing to remove a given item, even if the plaintiff cannot prove that the provider subjectively thought the item was infringing.
The filing is pretty direct at points, not just in mentioning things like "straw men" arguments, but also in highlighting that Viacom's argument in one part "makes no sense." That claim was in reference to Viacom's weak attempt to claim that because YouTube very briefly had a feature to let users flag "infringing" works, but then took it away, that meant that YouTube had willful blindness. YouTube debunks that, pointing out that they wouldn't have even created the feature if it wanted to ignore infringement. The reason they got rid of the feature was because it didn't work, because users don't know if a work is infringing or authorized. At another point in the filing, YouTube more or less mocks Viacom's attempt to reinterpret the Grokster standard, quoting Viacom's language (which is quite different that the Supreme Court's) and says "whatever that means...."
The filing also reiterates the key point that highlights the pointlessness of Viacom's claims that YouTube must have known what was infringing: which is the extensive efforts by Viacom to upload its own stuff but make it look like it was infringing. Combined with this is the fact that Viacom allowed plenty of clips it found on YouTube to remain... even if they were infringing. As we pointed out last time, Viacom had a huge and ever-changing book of "rules" as to what got left up and what got taken down (i.e., what was authorized and what was not). YouTube did not have this book. Suggesting that YouTube should know what to take down here makes little sense.
As for the supposed "smoking gun" emails that supporters of Viacom's position always point to, beyond the fact that many were taken totally out of context, none of them show that YouTube knew of any Viacom content that was infringing.
When Viacom filed its appeal, one of the Viacom supporters in our comments highlighted a part of Viacom's filing that focused on the Congressional record, suggesting that Congress meant to codify common law vicarious liability rules into the DMCA. However, YouTube's response points out what Viacom supporters would like to ignore: that the Congressional record being quoted was for a preliminary version of the DMCA, not the final one, and that Congress specifically decided not to follow through on those suggestions. Oops.
There's a lot more in the filing, but it systematically destroys each of Viacom's questionable claims. It won't come as a surprise to anyone that I find YouTube's arguments here persuasive, and Viacom's ridiculous. The district court saw it as well, and hopefully the Appeals Court will agree. That this is happening in the same circuit that decided the Tiffany/eBay case, which noted that eBay was protected from liability in trademark law -- where there aren't even the safe harbors that copyright law has -- would seem to bode well for YouTube. It suggests that YouTube's actions taking down content it knew was infringing clearly meet the standards necessary to be free from liability for videos uploaded by users. Either way, the filing is a fun read if you want to see a rather systematic takedown of Viacom's weak arguments.