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), 9 Dec 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.

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