Viacom v. YouTube:

The Future of the Section 512 Safe Harbors?

Mary Rasenberger

April 2011

Skadden, Arps, Slate, Meagher & Flom LLP

DMCA Legislative History:Purpose of Section 512

“[Section 512] preserves strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital networked environment.”

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Section 512(c)(1) Qualifications

Service provider shall not be liable … by reason of the storage at the direction of a user… if the service provider:

(A)(i) does not have actual knowledge …

(ii) …is not aware of facts or circumstances from which infringement is apparent;

(iii) upon obtaining knowledge or awareness, acts expeditiously to remove or disable access…

(B) does not receive a financial benefit directly attributable to the infringing activity … where service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement (under section (c)(3)), responds expeditiously to remove, or disable access to, the infringing material…

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Section 512(c)(3): Elements of notice

(A) Written communication provided to designated agent that includes substantially:

(i) A physical or electronic signature;

(ii) Identification of the copyrighted work infringed… or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

(iii) Identification of the material that is claimed to be infringing … and information reasonably sufficient to permit the service provider to locate the material;

(iv) Contact information for the complaining party;

(v) Statement of good faith belief that use infringes;

(vi) Statement that information is accurate and that complainant is authorized to act on behalf of copyright owner.

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Section 512(m): Protection of Privacy

Nothing in this section shall be construed to condition the applicability of subsections (a) through (d) on —

(1) a service provider monitoring its service or affirmatively seeking facts indicating infringing activity, except to the extent consistent with a standard technical measure complying with the provisions of subsection (i); or

(2) a service provider gaining access to, removing, or disabling access to material in cases in which such conduct is prohibited by law.

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Emails among Youtube Founders• “if you remove the potential copyright infringements, site traffic

and virality will drop to maybe 20% of what it is . . . i’d hate to prematurely attack a problem and end up just losing growth due to it.”

• “i know that if [we] remove all that "copyright infringement stuff", we go from 100,000 views a day down to about 20,000 views or maybe even lower.

• “we have to keep in mind that we need to attract traffic. how much traffic will we get from personal videos? remember, the only reason why our traffic surged was due to a video of this type. . . . viral videos will tend to be THOSE type of videos.”

• “jawed, please stop putting stolen videos on the site. We’re going to have a tough time defending the fact that we’re not liable… when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it.”

Skadden, Arps, Slate, Meagher & Flom LLP

Viacom v. YouTube: Findings

• “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 advertisers…"

• But…YouTube complied with notice and take down.

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Viacom v. YouTube: District Court Decision: June 2010

• Court frames “Critical Question”: – Whether “actual knowledge” and “awareness of facts and

circumstances from which infringing activity is apparent” mean a general awareness of widespread infringement or actual or constructive knowledge of specific, identifiable infringements of individual items?

• Concludes: – Both mean knowledge of specific instances on infringement.

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Viacom v. YouTube: Conclusion

• Based on review of prior case law and YouTube’s more recent take-down efforts, J. Stanton concludes:– The notice and take-down regime works effectively

• When Viacom sent a notice with 100,000 videos; all were taken down the next day.

– YouTube is doing all it needs to do.

– Up to Viacom to locate each infringing file and send a compliant notice.

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Viacom v. YouTube: Issues in Legislative Interpretation

• Under basic principles of legislative interpretation, court should give effect, if possible to every clause and word of a statute.– Montclair v.Ramsdell, 107 U.S. 147, 152 (1883) (Harlan, J.).

• Where Congress uses a term in a statute that has a settled meaning in the common law, that settled meaning must be adopted unless the statute expressly states otherwise. – Neder v. U.S., 527 U.S. 1, 21 (1999).

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Legislative History: Red Flags• “Where the infringing nature of such sites would be

apparent from even a brief and casual viewing.”

• A service provider has no obligation to seek out copyright infringement but it won’t qualify for the safe harbor if it “turned a blind eye to red flags of obvious infringement.”

• “Service provider need not monitor its service or affirmatively seek facts indicating infringing activity,” but …

• “Once one becomes aware of such infringement, it may have an obligation to check further.”

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Viacom v. YouTube: Policy Issues• What happened to cooperation: Are there any

incentives left for service providers to cooperate?

• Can a content owner effectively police user generated infringement (UGI) if it has to identify every URL of every item of infringing content?

• How can content owner effectively police UGI on a site when it can’t filter the site?

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Viacom v. YouTube: Policy Issues• Should UGC sites be allowed to profit from knowingly

hosting infringing content?

• On other hand, how can service provider remove infringing content if it doesn’t have particularized knowledge of where it is?

• Who bears the burden of identifying infringing content?– Who is in the better position to do so?– Obligation to use filtering technologies?– Will it really harm the robustness/growth of Internet if

ISP’s hosting rampant infringement have to bear burden of filtering?