“Safe Harbor” and YouTube

Judge Sides With Google in Viacom Suit Over Videos [pdf]

In a major victory for Google in its battle with media companies, a federal judge in New York on Wednesday threw out Viacom’s $1 billion copyright infringement lawsuit against Google’s YouTube, the No. 1 Internet video-sharing site.

[…] The judge granted Google’s motion for summary judgment, saying the company was shielded from Viacom’s copyright claims by “safe harbor” provisions of the Digital Millennium Copyright Act.

Those provisions generally protect a Web site from liability for copyrighted material uploaded by its users as long as the operator of the site takes down the material when notified by its rightful owner that it was uploaded without permission.

The issue, of course, is what “safe harbor” means. From the decision:Viacom v. YouTube

[T]he critical question is whether the statutory phrases “actual knowledge that the material or an activity using the materials on the system or network is infringing,” and “facts or circumstances from which infringing activity is apparent” in § 512(c)(1)(A)(i) and (ii) mean a general awareness that there are infringements (here, claimed to be widespread and common), or rather mean actual and constructive knowledge of specific and identifiable infringements of individual items.

Upon consideration of the legislative history of the DMCA, the judge concludes:

The tenor of the foregoing prvisions 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. […]

The judge similarly shows that the case law does not support the more stringent requirement, ironically noting that Viacom’s citing of Grokster runs counter to an email from Viacom’s General Counsel sent in 2006 that favorably cites YouTube’s behavior in contrast with Grokster’s.

It’s the “Other points” section that merits more careful examination, I think. First, Viacom claimed that the multiplication of copies that takes place as a consequence of posting anything online is outside the safe harbor, which the judge declares “the provision of such services, access, and operation of facilities are within the safe harbor [….]”

Part (b), a throwaway, looks particularly notable, and I simply quote for your own assessment

The safe harbor requires that the service provider “not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity [….]” §512(c) (1) (B). The “right and ability to control” the activity requires knowledge of it, which must be item-specific. (See Parts 1 and 2 above.) There may be arguments whether revenues from advertising, applied equally to space regardless of whether its contents are or are not infringing, are “directly attributable to” infringements, but in any event the provider must know of the particular case before he can control it. As shown by the discussion in Parts 1 and 2 above, the provider need not monitor or seek out facts indicating such activity. If “red flags” identify infringing material with sufficient particularity, it must be taken down.

Later: Hometown papers’ editorials unpredictable, for once; discussing the following editorials — the LATimes’ Online piracy: As a mere host, YouTube is protected from liability [pdf]; the SF Chronicle’s On the YouTube vs. Viacom Case: Our antiquated copyright laws [pdf]