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Viacom's Appeal in the YouTube Case - Analysis

Viacom has just filed its much-anticipated appeal of a district judge's decision to dismiss its $1 billion copyright infringement lawsuit against YouTube.

Read it here. Analysis below:

Viacom Appeal

Viacom told an appeals court today why it believes a New York federal judge was in error when he decided to dismiss its case against Google-owned YouTube last June.

Viacom calls Judge Louis Stanton's decision to allow YouTube safe harbor from copyright infringement liability under Section 512(c) of the DMCA an "implausible conclusion." 

Viacom not only attacks the basis for that decision, but says that if Stanton's interpretation of the law were to stand, it would immunize "avowedly piratical Internet businesses" from being pursued by content owners. As an example, the studio says that even Grokster-type file-sharing services -- condemned in a famous Supreme Court decision -- would be off the hook "with just minor tweaks to their business models."

"If affirmed by this Court, that construction of Section 512(c) would radically transform the functioning of the copyright system and severely impair, if not completely destroy, the value of many copyrighted creations," writes Viacom.

Two key points from the brief:

  • Viacom is most focused on YouTube's early days, not its current incarnation. Viacom is making the case that YouTube built its business on the shoulders of rampant copyright infringement. In Judge Stanton's opinion, he found that YouTube had only "general knowledge" of infringement, but Viacom points to a long list of internal company e-mails and internal documents that allegedly prove that YouTube "intentionally blinded itself" to infringement on its site and, moreover, "intentionally facilitated its users' rampant infringement." This is an effort to show that even under Judge Stanton's narrow interpretation of the DMCA, facts indicate that YouTube shouldn't be eligible for safe harbor from copyright liability. 
  • Not withstanding what's above, Viacom would still like the appeals court to consider applying another broader standard from the one that Judge Stanton used when figuring out who qualifies for safe harbor. It wants the appeals court to accept that general knowledge of infringement is as good as actual knowledge in forcing an ISP to act. Pointing to the language of the DMCA itself, Viacom writes that "the statutory language here provides no support whatsoever for the district court's requirement of item- and location-specific knowledge." The key issue in the discussion is figuring out whose responsibility it is to police for infringement. What the appeals court says on this issue will help determine a roadmap for ISPs going forward.

The brief pivots back and forth between these two points. Viacom would like the appeals court to accept a broad interpretation of the DMCA, but just in case it doesn't, Viacom believes that YouTube is still liable.

YouTube is attacked on other angles too. 

For example, the defendant has always maintained that it is  a "storage" service at the behest of its users. Viacom says that if YouTube is able to call itself that, it would provide online content-based entertainment enterprises an unfair advantage against its real-world counterparts. Companies like Viacom have significant licensing restrictions when doing business. And Viacom doesn't want potential online competitors to escape legal burdens by modestly calling themselves a "storage" service in an attempt to gain statutory favor.

But most importantly, Viacom wants the appeals court to believe that YouTube intended to violate copyright laws. This is the overarching theme of Viacom's 63-page brief.

Google sent us this statement:

"We regret that Viacom continues to drag out this case. The court here, like every other court to have considered the issue, correctly ruled that the law protects online services like YouTube, which remove content when notified by the copyright holder that it is unauthorized. We will strongly defend the court’s decision on appeal.”