In Viacom Int'l Inc. v. YouTube Inc., 07 Civ. 2103 (June 23, 2010 SDNY), Judge Stanton granted summary judgment dismissing contributory copyright infringement claims against YouTube and upheld the safe harbor provisions of the Digital Millenium Copyright Act, 17 USC 512(c) for internet service providers (ISPs). This was so, even though, as Judge Stanton noted:
From plaintiffs’ submissions on the motions, a jury could find that the defendants not only were generally aware of, but welcomed, copyright-infringing material being placed on their website. Such material was attractive to users, whose increased usage enhanced defendants’ income from advertisements displayed on certain pages of the website, with no discrimination between infringing and non-infringing content.
At issue in the case is who bears the burden of policing for copyright infringements. Do copyright owners bear the cost, or do ISP's have to act as cops?
In analyzing the legislative history of the DMCA safe harbor provisions, Judge Stanton noted:
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. That is consistent with an area of the law devoted to protection of distinctive individual works, not of libraries. To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.
Judge Stanton appeared to be impressed that when Viacom gathered evidence of 100,000 infringing videos and sent a massive takedown notice, YouTube had the videos taken down by the next day.
I discuss Cease and Desist Letters and Declaratory Judgment Actions in Chapter 6 of my Copyright Litigation Handbook. In Chapter 7, Drafting the Infringement Complaint, I deal with Internet Service Providers. There is a growing body of case law saying that you have to be pretty specific with your takedown notices and follow the rules in order to trigger liability of an ISP.
In Viacom v YouTube, Judge Stanton notes that providing the URL (uniform resource locator) of the infringement is the type of information that would comply with the specificity required of a takedown notice.
Viacom v YouTube
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