It's been about a year since the 2nd Circuit appeals court sent the Viacom v. YouTube case back
to the district court. As we noted at the time, the original district court ruling, which said YouTube was protected by the DMCA's safe harbors, was a good ruling
, well reasoned and argued by the court. In contrast, the appeals court ruling dipped into very troubling waters. While it agreed with the district court that YouTube needed "specific" knowledge of infringing works, rather than "general" knowledge that some works were infringing, it also went into questionable territory by arguing that YouTube could be found guilty of "willful blindness," despite the DMCA statute not including any such concept and also being pretty clear that you need specific knowledge in the form of a DMCA-compliant notification.
On Friday, the latest set of (slightly redacted) filings in the case back at the district court were revealed. They were filed in the past few months, but sensitive info was finally redacted and the "public" copies have now been released. Google has, not surprisingly, basically asked the court to reiterate its original ruling, noting that even following the appeals court sending it back, the situation hasn't changed: YouTube obeyed the DMCA's notice-and-takedown procedures and is protected under the DMCA's 512(c) safe harbors
(pdf). Google highlights how YouTube has followed notice-and-takedown procedures from early on, and even in the early days blocked some videos that it thought might be infringing. It also notes that Viacom itself pulled a bunch of videos from the lawsuit after it finally signed up to use ContentID and realized that it was beneficial
to Viacom's own business. More importantly, as we've pointed out a bunch of times, many videos had to be removed from the case because Viacom had uploaded them itself
and even had "confidential (and ever changing) instructions to its copyright-monitoring agent" concerning what to pull off of YouTube. Even worse, apparently, even today
, Viacom hasn't fully figured out if all of the clips they're suing over were really infringing. It turns out that many of them are identical
to the ones that Viacom itself uploaded as authorized copies (and there's evidence Viacom often uploaded the same clips multiple times itself on purpose).
The basic point: there's no way for Google to know what Viacom uploaded on purpose and what is unauthorized unless it receives direct notification about it. Just like the DMCA safe harbors require. Not only that, but they show that Viacom knew this as fact. First, Viacom tried to buy YouTube itself, and internal memos from Viacom execs noted that "user generated content appears to be what's driving" YouTube's success and even that "consumption of branded content on YT is low." They also specifically stated that YouTube "has many" non-infringing uses.
As for the specific issues raised by the appeals court, YouTube points out that for "willful blindness" to apply, Viacom needs to show that specific clips in this lawsuit
were involved in cases where there is evidence of willful blindness by YouTube. That's because the lawsuit is just about those particular clips. If Viacom wants to go after a general willful blindness on the part of YouTube, that's way beyond what the law allows -- and the court is specific about this, noting that Viacom needs to show willful blindness to specific infringements
concerning videos in the lawsuit.
But, of course, Viacom doesn't bother to show a single piece of evidence
alleging willful blindness by YouTube in regards to any one of the clips in the lawsuit. Instead, in its opposition filing
it once again tries to rewrite the law in its favor, trying to create a ridiculously broad general "willful blindness" standard that effectively wipes out the DMCA's 512(c) safe harbors. First, it relies almost entirely on an email sent by an ex-
employee of YouTube, in which he claims there is a lot of infringement on the site, but does not name any specific videos
. As Google points out, just having someone say there's infringing works on YouTube doesn't (a) show what files need to be removed or (b) even prove the works are actually infringing (see: Viacom uploading its own videos) or, most importantly (c) prove that YouTube failed to remove infringing videos when it learned they were infringing
. Viacom doesn't even seem to try to show any of those things. Also, the fact that the email came from an ex
-employee certainly doesn't prove that YouTube
had knowledge of the specific infringements.
As the filing notes:
The type of generalized guesswork that Viacom engages in bears no resemblance to the showing of specific knowledge of clips-in-suit that the Second Circuit demanded.
In fact, Viacom's filing is really incredible. Having completely lost (at both district and appeals court levels) its ridiculous claim that "general knowledge" of some infringement somewhere on the site leads one to lose safe harbors, Viacom simply tries the same argument again
, pretending that the "willful blindness" standard is basically a stand-in for "general knowledge." That's hogwash on many levels, and frankly, I'm surprised that Viacom's pricey lawyers would bother with that argument. The district court already rejected it and the appeals court was pretty clear that Viacom needed to show willful blindness on specific items, not generally.
It also tries to completely flip the burden of proof, arguing that as long as Viacom can show that infringing works were on the site, YouTube
has to show that they "lacked such knowledge or awareness of Viacom's clips-in-suit." That's not how the law works. Viacom is actually arguing that the DMCA requires proving the negative. Furthermore, it argues that YouTube's failure to implement an anti-piracy filter that Viacom wanted is more proof of willful blindness. That's similarly ridiculous. The DMCA has been held, repeatedly, to not
include a proactive duty to monitor. Failing to do so at the insistence of Viacom (even as YouTube was establishing its own filter anyway) is hardly proof of willful blindness to the infringement of specific clips (and given Viacom's "dizzying array" of authorized videos on the site, such a filter would hardly prove infringement). Incredibly, Viacom insists that it's YouTube trying to flip the burdens in the DMCA, but either Viacom's lawyers have totally misread... um... everything, or they're lying to the court.
They're correct that to get safe harbors the service provider needs to meet certain "burdens," but those are laid out in 512(c). It needs to be a service provider that does not have actual knowledge and when it gets the knowledge, it acts expeditiously to remove or disable access to the material. Those are pretty clearly laid out. Viacom is making things up pretending that the burden also
includes the idea that if a copyright holder claims its works are there then the burden shifts to the service provider to prove the negative that it wasn't willfully blind to infringement. Viacom literally argues:
It is not Viacom's burden to prove specific knowledge or awareness. That factual issue is relevant only to the affirmative defense that YouTube is asserting; knowledge of specific infringements is not an element of Viacom's copyright infringement claims against YouTube. At trial, it will be enough for Viacom to prove that the clips-in-suit were on the website, along with some other elements of infringement liability.
Got that? Stuff on the site, plus "some other elements" and boom, no more safe harbors. That's crazy. That's clearly not the purpose of the safe harbors, because that would mean there are no DMCA safe harbors
As YouTube noted in response:
Viacom does not even try to make the showing of clip-specific
knowledge required by the Second Circuit’s ruling. It instead reverses course and
claims that it is YouTube’s burden to affirmatively establish its lack of knowledge
as to each specific clip-in-suit. Viacom’s novel burden-shifting argument is
wrong. It is contrary to the Second Circuit’s decision, all the case law, and the
structure of the DMCA itself. Viacom also ignores the record. YouTube has
identified more than sufficient evidence of its lack of knowledge of infringement—
including the very fact that the voluminous record in this case contains no evidence
of such knowledge. Viacom’s inability to offer any evidence from which a jury could
find that YouTube had actual or red-flag knowledge of even a single clip-in-suit
requires that summary judgment be entered in YouTube’s favor.
Viacom goes on to argue that even though the DMCA is explicit (in 512(m)) that there is no duty to monitor, there really is
a duty to monitor! How do they tap dance into that position? By arguing that while there's officially no duty to monitor, if you fail
to monitor because
it might show you infringing works, then you are guilty of willful blindness. Got that? There's no duty to monitor, but failing to monitor shows that you were making yourself willfully blind. If that's true, then 512(m) makes no sense, which is what Viacom (and other copyright maximalists) have always wanted (in fact, we noted just this three years ago
about this case). They want a requirement for others to be their personal copyright cops and 512m gets in the way of that, so Viacom is trying to rewrite it here. In doing this, it relies heavily on the ruling in the Tiffany v. Ebay case -- but that's a very different story, involving trademark (for which the safe harbors don't apply), not copyright.
Viacom also regularly cites shows like South Park
, the Daily Show
and others despite the fact that Viacom explicitly (in its "rules" sent to BayTSP, its DMCA monitor) had many, if not most, of those clips left on the site as authorized.
There are a few other points up for debate -- concerning things like whether or not YouTube got financial benefits directly from infringement, whether or not reformatting YouTube videos for smartphones removes safe harbors and a few small other points that we won't get into here. Those are unlikely (hopefully) to be the center stage issue, and this post is long enough as is. Frankly, I remain surprised that Viacom's arguments seem so obviously weak. Ever since the case began, I've been surprised at how weak
Viacom's arguments are. From the beginning, I expected them to have a stronger lawsuit. Having read the latest filings, it really feels like Viacom went all in early, and rather than admit it never had the goods, it's just going to try crazier and crazier arguments and hope that a court gets confused. Seems like a good way to completely throw away money.
Anyway, if you feel like digging into the three filings (YouTube's motion for summary judgment
, Viacom's opposition
and YouTube's reply
), they're all embedded below for your reading pleasure.