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 Viacomís 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.

Filed Under: actual knowledge, copyright, dmca, red flags
Companies: aipla, google, viacom, youtube

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  1. icon
    average_joe (profile), 8 Dec 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.

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