Huge Victory: Court Rules For YouTube Against Viacom

from the wow dept

Well this is a pleasant surprise. Like many others, I had assumed that the court reviewing the Viacom/YouTube lawsuit would not accept either side’s position for summary judgment and the case would go to a full trial. However, as Eric Goldman alerts us, the court has quickly ruled in favor of Google/YouTube, saying that it is, in fact, protected by the DMCA’s safe harbors. Here’s the ruling:

Basically Viacom’s argument got decimated. The court points out that Congress clearly meant for the DMCA safe harbors to cover situations like this, and excerpts large chunks of the legislative record to support that. From this the court concludes exactly what many of us have been saying all along:

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.

That is consistent with an area of the law devoted to protection of distinctive individual works, not of libraries. To

let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers

to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.

The court points out that not only does this makes sense from the legislative history on the DMCA, but also from a common sense standpoint:

That makes sense, as the infringing works in suit may be a small fraction of millions of works posted by others on the service’s platform, whose provider cannot by

inspection determine whether the use has been licensed by the owner, or whether its posting is a “fair use” of the material, or even whether its copyright owner or licensee objects to its posting. The DMCA is explicit:

it shall not be construed to condition “safe harbor” protection on “a service provider monitoring its service or affirmatively seeking facts indicating infringing activity. . . .”

Not only that, the court finds that since Google is good about taking down content it receives DMCA notices on, it appears the system has been working just fine, and Viacom’s worries are misguided:

Indeed, the present case shows that the DMCA notification regime works efficiently:

when Viacom over a period of months accumulated some 100,000 videos and then sent one mass take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them.

Once again, making it clear that “general knowledge” of infringing behavior is entirely different from the specific knowledge required by the DMCA:

Although by a different technique, the DMCA applies the same principle, and its establishment of a safe harbor is clear and practical:

if a service provider knows (from notice from the owner, or a “red flag”) of specific instances of infringement, the provider must promptly remove the infringing material. If not, the burden is on the owner to identify the infringement. General knowledge that infringement

is “ubiquitous” does not impose a duty on the service provider to monitor or search its service for infringements.

The court also claims that the rulings in the Grokster, Isohunt and Limewire cases are not relevant here, as the situations in all three were entirely different. Amusingly, the judge quotes the rather damning email from Viacom’s general counsel Michael Fricklas, where he stated, quite clearly, that YouTube was “staggering” in its difference from Grokster.

Basically, the court sides with Google/YouTube on every point and eviscerates the arguments of Viacom. This is a huge victory for common sense and the proper application of liability. Viacom will certainly appeal, so we’re nowhere near done yet, but it’s great to see the court get this one so thoroughly correct.

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Companies: google, viacom, youtube

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Comments on “Huge Victory: Court Rules For YouTube Against Viacom”

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imbrucy (profile) says:

Great news, but I fear the Appellate Court

This is fantastic news. It’s good to see a judge with some common sense acknowledge that only Viacom can know what is infringing.

The only thing that scares me is, given the history of the lack of common sense in the appellate court, that it will be overturned and sent back down by the court. Lets all hope that isn’t the case.

Anonymous Coward says:

Re: Re: Re: IFPI

But in the UK as in Canada there are Common Carrier rules for such entities as telcos and cablecos and others and splitting hairs is likely to land IFPI in civil court for decades sorting THAT little mess out whether in Canada or the UK.

This ruling, however, makes the position in the US as close to perfectly clear as it’s going to get short of a US Supreme Court ruling which will also take years.

Bruce Ediger (profile) says:

Re: Re:

e e trollings wrote:welcome to the content free for all. watch the movie and tv business disappear.

Wait just a minute. In another comment you (or someone who writes exactly like you) wrote:conversations may be an issue if you havent pre-warned the people that you are recording. that would take a better lawyer than average to figure out.

Going back to that article for context, you seemed to have admitted back then that some authority (you wrote “a lawyer”, but that’s wrong, they only argue cases, not decide them) was needed to decide what constituted copyright violation and what constituted privacy violation. So how, in this case, is YouTube supposed to decide?

That’s a serious question, by the way. If YouTube is supposed to pre-emptively block user-uploaded content based on copyright violation, can you tell us how they’d do that in an economically feasible way? They can’t really run every clip past a judge to decide, that would cost too much, and they would just shut down.

On a less serious and far less factual note, if the Red Chinese invaded today and shut down the movie and tee vee industries, hardly anyone would shed two tears. They’ve lost all relevance in and of themselves, auto-sodomizing themselves via self-parody.

Anonymous Coward says:

Re: Re: Re:

>That’s a serious question, by the way. If YouTube is supposed to pre-emptively block user-uploaded content based on copyright violation, can you tell us how they’d do that in an economically feasible way? They can’t really run every clip past a judge to decide, that would cost too much, and they would just shut down.

He’s already been called out on this, and has subsequently never answered why he expects YouTube/Google to hold to these standards, while Viacom doesn’t need to, when it was revealed to all that even Viacom doesn’t know what’s infringing and what’s not. Calling his bluff at this point is akin to smashing your head on a brick wall — you’d be much better off demolishing the whole farce with a wrecking ball and a push of a button.

Anonymous Coward says:

Re: Re: Re:

If YouTube is supposed to pre-emptively block user-uploaded content based on copyright violation, can you tell us how they’d do that in an economically feasible way?

Obviously, they could offset the costs by selling branded T-shirts and other tangibles. Google execs could even sell lunch dates or mini-golf play-dates to their biggest fans. The opportunities are endless! As the “evidence” clearly shows, if they would only change their outdated business model, they would end up making “MORE MONEY THAN EVER!”™.

Stop being such a Luddite with your “How is this economically viable?” dinosaur-pessimism. It is viable. There are numerous examples of it working numerous times, numerously.

Jeremy7600 (profile) says:


My girlfriend is looking at me crosseyed as I hoot and holler, but I don’t care, this is HUGE!!! Of course it will get appealed, but until then, YAY!!!!

So much for IFPI’s case, huh? I think they just obliterated their entire “Please note that we do not admit that we or the IFPI Represented Companies are responsible for detecting infringing material and notifying you of it.” line of reasoning, eh?

You are, IFPI, VERY MUCH responsible for detecting infringing material and notifying google of it!!! STUFF IT!!!

Anonymous Coward says:

This is certainly great news for aggregator overlords who can now feign ignorance all the way to the bank.

“I think it’s an accepted [sic] that in an environment such as YouTube, relying on user-generated content, copyrighted and inappropriate content will find its way onto the site. On the dev environment, we’ve implemented a flagging system so you can flag videos as being inappropriate or copyrighted. That way, the perception is what we are concerned about this type of material and we’re actively monitoring it.” – Steven Chen

Mike Masnick (profile) says:

Re: Re:

This is certainly great news for aggregator overlords who can now feign ignorance all the way to the bank.

Spoken like someone who clearly has not read the actual ruling, which makes it clear that they cannot feign ignorance at all.

This thread is really funny, watching all the industry folks who so strongly insisted that there was no way Viacom could lose now twisting this.

Hephaestus (profile) says:

Re: Re: Re:

“watching all the industry folks who so strongly insisted that there was no way Viacom could lose”

It has to do with the fact that, they feed off each other and rationalize. If enough people say “we are going to win this” often enough, in a closed group, eventually they believe its the truth. Its why they dont want to hear any disenting views at their get togethers.

Mike a couple days ago you mentioned that you were invited to an industry gathering, that some in the industry (RIAA I believe ??) did not want you there, and barely anyone showed up when you spoke. That is a result of a combination of avoidance behavior and denial. They want to live in their little world where everything will be fine, and no one puts doubts of their world view in their heads. When confronted with dissenting views, people in this state will strike out verbally, ignore what you are saying, and concentrate on anyone who speaks and shares the same world view. Since you have been on record label -vs- the outside world discussion panels you have more than likely seen what I described above first hand.

“strongly insisted that there was no way Viacom could lose now twisting this”

goes to what I was saying above.

Anonymous Coward says:

Viacom is Appealing

As expected Viacom is going to appeal, as reported in the

Hollywood Reporter

Here is how Viacom lawyers are spinning this judgement:

“This case has always been about whether intentional theft of copyrighted works is permitted under existing law and we always knew that the critical underlying issue would need to be addressed by courts at the appellate levels. Today’s decision accelerates our opportunity to do so.”

Tom Sydnor (user link) says:

Mike thinks this decision is as brilliant as the district-court decision in Grokster....

Mike, I am sure that you find the district-court decision in Viacom v. YouTube every bit as brilliant as the district court decision in Grokster. Remember how you opined that the Grokser district court “really seems to have understood the issues”? Remember how every single Justice of the United States Supreme Court disagreed with you?

So here is a link to some competent analysis of your latest favorite judicial decision:

It’s Grokster all over again, Mike. Yet, somehow, you hold out the vain hope of a different outcome…. –Tom

Tom Sydnor (user link) says:

OK, modplan, here is a link to more detailed analysis

Modplan, thank you for your comments. Someday, you may realize that the law has long held persons liable whenever they intend to use the actions of others as means to illegal ends. This is black-letter law, and that fact is not debatable. Should you require more detail, I have provided an abundance of it here:

The problem is not that I provide “no analysis.” The problem is that you cannot perceive the merits of the detailed analysis that I provide. This does not worry me: Appelate courts seem to have no difficulty discerning what you do not. Thanks for your thoughts. –Tom

Tom Sydnor (user link) says:

Mike. stop playing make-believe....


At the risk if introducing the dread concept of “logic” into Techdirt, I note the following. You say, “There are pretty massive differences between Grokster and YouTube. That you can’t see that is not surprising.”

Mike, that sort of claim is what logicians call “conclusory.” In other words, you say that there are “massive differences between Grokster and YouTube” but your intellectual cowardice prevents you from explaining what those “massive differences” might be. Please, Mike, enlighten me as to what the heck you think that you mean…

And remember, Mike, unlike you, I actually understand how file-sharing programs and networks actually function. So I know that the original YouTube was merely used for infringement about 70% of the time–while a program like LimeWire was used to infringe about 98.8% of the time and a program like Morpheus was used to infringe about 95% of the time. So tell me: What legally relevant difference between these outcomes do you perceive, Mike?

I realize that these are really tough questions that may strain your cognitive abilities, Mike. Fortunately, I have authored a blog post that may help you work through these potentially difficult issues. The following link should prove to be helpful and illuminating:

I realize that it must be really painful to perceive that your 2010 analysis of the merits of the district-court opinions in Viacom v. YouTube is just as incompetent as your 2003 analysis of the district-court opinion in MGM Studios, Inc. v. Grokster, Ltd. Let me know if you can perceive any means through which you might become less prone to make same mistakes so reapeatedly.

Snuggles. –Tom

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