7:15pm PT by Eriq Gardner
Viacom Responds to YouTube's Interpretation of Copyright Law
Is notorious file-sharing service Grokster going to make a comeback? Probably not, but Viacom warns of coming nightmares to copyright holders if the 2nd Circuit Court of Appeals agrees with YouTube's theory of copyright law.
Earlier this week, we discussed the issue of "red flags," copyright-speak for what ISPs must do when they are "aware of facts or circumstances from which infringing activity is apparent." After an oral hearing last month, the 2nd Circuit asked YouTube to explain whether and how the "red flag knowledge provision would apply" under YouTube's interpretation of copyright law.
YouTube responded by saying that ISPs don't have to make any moves unless they see an obvious and specific infringement that doesn't require investigation.
On Tuesday, Viacom offered its rebuttal, saying that if this theory holds, YouTube could tear up its agreements with content partners, disable its digital fingerprinting system, and welcome massive infringements until a takedown notice is received. According to Viacom's brief:
"Indeed, in YouTube's view, Grokster itself could resurface as a 'storage' site, allow users to post copyrighted music throughout its system for public consumption, avoid knowledge of the specific location of particular pirated music files, and respond to takedown notices, with complete immunity from copyright infringement liability under the DMCA."
The theory that ISPs could get away with more if Judge Stanton's order dismissing Viacom's lawsuit is left to stand isn't new. Others in the industry have expressed that viewpoint too.
Here in Viacom's letter to the 2nd Circuit, the company describes its view that once an ISP has awareness of infringements, even if it avoids knowing most of the specifics, it has a duty to act to address the problem.