Viacom Didn't Actually 'Win' Against YouTube, But The Appeals Court Ruling Is Still Dangerous
from the a-mixed-bag dept
We already covered the 2nd Circuit’s ruling in the appeal of the Viacom/YouTube case, but I wanted to follow up after seeing much of the coverage. There have been a number of reports that outright declare this a “victory” for Viacom, which is a very generous reading of the ruling. To be sure, the appeals court reinstates the case that had been effectively shut down by the district court — but it did so in a manner that rejected every single one of Viacom’s interpretations of the law. The biggest concern in this lawsuit was that Viacom would be able to use it to effectively reinterpret the DMCA the way it wanted the law to act, rather than the way the law was actually written (and which the case law has supported for years). The court clearly rejected that attempt by Viacom.
But, of course, it wasn’t a complete vindication for YouTube. Reviving the lawsuit is clearly a partial step backwards for YouTube, but it’s entirely possible that they could still prevail in the district court on the specific points that were sent back for trial. And, in the details of why the appeals court revived the case are some significant problems, many of which are outlined in a thorough post by Eric Goldman. I don’t agree that the ruling is quite as significant as Goldman does, but he does make some good points about problems with the setup of the DMCA’s safe harbor and (equally troubling) the way the court ruled on a few key points that make little sense.
On the setup of the DMCA, Goldman notes that the real issue here is that the DMCA safe harbors have a bunch of different confusingly worded parts — and to keep the safe harbors, you need to hit on every point, which is kind of ridiculous when you think about it:
Most importantly, this opinion exposes a structural deficiency of the 512(c) safe harbor. The statute’s simply too long and detailed, and if a defendant fails to satisfy each and every element, the safe harbor is lost completely. This is reminiscent of military strategy and information security: the defense has to work equally well across its entire border, while the adversary can concentrate its attack and only has to succeed on one point of attack to win. The same is true with a 512(c) defense. So, it doesn’t matter that YouTube won most of the points of contention; if any single point of contention fails, YouTube’s 512(c) defense fails. As I’ve insisted before, this provides a good lesson for drafters of safe harbors and immunities–to work effectively, the safe harbors/immunities must be pithy and categorical, or else they create too many potential points of failure.
This is a really good point, and suggests that if the DMCA is to be fixed, the safe harbor provisions should be clearer that missing a single checkbox doesn’t mean you automatically lose all safe harbors.
The second concern is how the court interpreted parts of the DMCA where it’s been sent back to the lower court. As Goldman notes, the 2nd Circuit’s decision to totally punt on “right and ability to control” is going to create a huge mess for a while, in which we can expect copyright holders to flood the 2nd Circuit with cases focusing on that point — since the appeals court simply rejects the standards put forth by YouTube (which used an interpretation already accepted in the 9th Circuit) and Viacom (which used an interpretation that only made sense in the minds of Viacom execs) but fails to come up with its own standard. Meaning no one knows what the standard is… and that means that copyright holders have a chance to get the court to redefine it in their favor:
So the court agrees with no one. Given that it rejected everyone else’s definitions, we might expect the court to carefully lay out what it thinks the phrase means. Sadly, no. The opinion doesn’t provide an express definition of what qualifies as the “right and ability to control,” instead sending that issue back to the district court to figure out both the standard and whether YouTube met it. The clearest clue the court provides about the standard is it “involve[s] a service provider exerting substantial influence on the activities of users, without necessarily—or even frequently—acquiring knowledge of specific infringing activity.” I have no idea what that means, other than that it’s open season for plaintiff fiestas.
The fact that this will likely open up an opportunity for new lawsuits could be a pain for innovative companies who will face a new series of bogus legal attacks. Elsewhere, Goldman warns that the end result of this ruling will mean that startups that work with user generated comments are going to have to lawyer up at an earlier stage, and may have to take extra precautions which don’t appear to be supported in law, just to avoid lawsuits.
In the end, the ruling is certainly not a “victory” for Viacom, but it does have significant problems. The district court could fix some of the problems by establishing that YouTube still gets safe harbors, even after the court’s vague and directionless remand, but if that fails, perhaps this case and its differences from existing 9th Circuit case law would end up in the Supreme Court. That, of course, is risky, since the Supreme Court has been so consistently clueless when it comes to copyright cases.