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 Viacom’s 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
    Richard (profile), 11 Dec 2010 @ 3:18pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    OK - I'm not a law student so it is unprofitable for me to spend that amount of time on such detail - however the district court examined (and list) a substantial amount of the kind of evidence you quote and they concluded
    "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."

    Which is exactly
    my point.

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