Google Wins Viacom Copyright Lawsuit; Wired.com, 6/23/10

David Kravets, Wired.com; Google Wins Viacom Copyright Lawsuit:

"Google-owned YouTube won a major victory Wednesday when a federal judge ruled the video-sharing site was protected under U.S. copyright law.

Viacom, which vowed an appeal, was seeking $1 billion in damages in a case testing the depths of copyright-infringement protection under the Digital Millennium Copyright Act of 1998.

The ruling, if it survives, is a boon for internet freedom, especially as it applies to search engines, video-hosting companies, picture-hosting services like Flickr, social-networking sites like Facebook and micro-blogging services such as Twitter. But it will make it all the more difficult for rights holders to protect their works.

In short, Wednesday’s decision says internet companies, even if they know they are hosting infringing material, are immune from copyright liability if they promptly remove works at a rights-holder’s request — under what is known as a takedown notice.

“Today’s decision isn’t just about YouTube,” said Center for Democracy & Technology lawyer David Sohn. “Without this decision, user generated content would dry up and the internet would cease to be a participatory medium.”

U.S. District Judge Louis L. Stanton of New York disagreed with Viacom’s claims that YouTube had lost the so-called “safe harbor” protection under the DMCA. Viacom, parent of Paramount Pictures and MTV, maintained Google did not qualify, because internal records showed Google was well aware its video-hosting site was riddled with infringing material posted by its users.
Stanton ruled that YouTube’s “mere knowledge” of infringing activity “is not enough.”

“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,” the judge wrote.

Stanton ruled that YouTube had no way of knowing whether a video was licensed by the owner, was a “fair use” of the material “or even whether its copyright owner or licensee objects to its posting.”

Stanton added, “Indeed, the present case shows that the DMCA notification regime works efficiently: When Viacom over a period of months accumulated some 100,000 videos and then sent one mass takedown notice on Feb. 2, 2007, by the next business day YouTube had removed virtually all of them.”

Jonathan Band, a copyright attorney who helped craft the DMCA, said “The argument Viacom was making would have neutered the DMCA. I think the judge understood that.”

The DMCA, which was heavily lobbied into existence by the Hollywood studios, has been a boon for internet freedom. But it has been a bust in other areas.

Among its provisions, it prohibits the circumvention of encryption technology. DVDs are encrypted with what is known as the Content Scramble System, and DVD players must secure a license to play discs. So a San Francisco federal judge ruled in March that RealNetworks breached the DMCA when it marketed a DVD-copying device, and precluded it from the market. Apple also claims the DMCA makes it unlawful to jailbreak iPhones.

The Motion Picture Association of America declined comment on Stanton’s decision.

What’s more, the DMCA’s “safe harbor” privilege comes with another price. The law demands intermediaries such as YouTube to take down content in response to a notice from rights holders, without evaluating the claim for reasonableness or accuracy, or considering the fair use rights of users. That has opened the door to many abuses of free expression, including Universal Music’s 2008 takedown notice to YouTube over a Pennsylvania woman’s 29-second video of her toddler dancing to Prince’s “Let’s Go Crazy.”

The YouTube-Viacom decision came nearly a year after a Los Angeles federal judge ruled similarly in a case against little-known, video-sharing site Veoh, which has gone bankrupt. The difference between Wednesday’s ruling and the Veoh outcome, Band said, is that YouTube is mainstream, used by millions daily and is owned by one of the world’s most popular and richest internet brands: Google.

Google, which purchased YouTube for $1.8 billion in 2006, hailed the decision, saying it was “an important victory not just for us, but also for the billions of people around the world who use the web to communicate and share experiences with each other.”

Viacom, which brought the case three years ago, said “We believe that this ruling by the lower court is fundamentally flawed and contrary to the language of the Digital Millennium Copyright Act.”

Judge Stanton ruled the Supreme Court’s 2005 decision against Grokster did not apply. He said Grokster distributed software that allowed computer-to-computer exchanges of infringing material, “with the expressed intent of succeeding to the business of the notoriously infringing Napster.”

Here is the case’s entire docket."

http://www.wired.com/threatlevel/2010/06/dmca-protects-youtube/#ixzz0rjMsFe8I

Huge Victory: Court Rules For YouTube Against Viacom; TechDirt.com, 6/23/10

Mike Masnick, TechDirt.com; Huge Victory: Court Rules For YouTube Against Viacom:

"Well this is a pleasant surprise. Like many others, I had assumed that the court reviewing the Viacom/YouTube lawsuit would not accept either side's position for summary judgment and the case would go to a full trial. However, as Eric Goldman alerts us, the court has quickly ruled in favor of Google/YouTube, saying that it is, in fact, protected by the DMCA's safe harbors. Here's the ruling..."

http://www.techdirt.com/articles/20100623/1333269937.shtml

Viacom Loses To YouTube In Landmark Copyright Case; HuffingtonPost.com, 6/23/10

Michael Liedtke, AP via HuffingtonPost.com; Viacom Loses To YouTube In Landmark Copyright Case:

"A federal judge handed Google Inc. a major victory Wednesday by rebuffing media company Viacom Inc.'s attempt to collect more than $1 billion in damages for the alleged copyright abuses of Google's popular YouTube service.

The ruling by U.S. District Judge Louis Stanton in New York embraces Google's interpretation of a 12-year-old law that shields Internet services from claims of copyright infringement as long as they promptly remove illegal content when notified of a violation.

That so-called "safe harbor" helped persuade Google to buy YouTube for $1.76 billion in 2006, even though some of the Internet search leader's own executives had earlier branded the video-sharing service as "a 'rogue enabler' of content theft," according to documents unearthed in the copyright infringement case.

Stanton "blessed the current state of play on the Internet," said Eric Goldman, a Santa Clara University associate professor who specializes in high-tech law. The affirmation was cheered by Internet service providers and free-speech groups who believe the Digital Millennium Copyright Act helps give more people an outlet to express themselves.

"Without this decision, user-generated content would dry up and the Internet would cease to be a participatory medium," said David Sohn, a lawyer for the Center for Democracy & Technology."

Viacom, the owner of popular cable channels such as MTV, Comedy Central and Nickelodeon, called Stanton's decision "fundamentally flawed" and vowed to appeal. That virtually ensures a legal brawl that already has dragged on for more than three years will spill into 2011 and perhaps beyond.

"Copyright protection is essential to the survival of creative industries," said Michael Fricklas, Viacom's general counsel. "It is and should be illegal for companies to build their businesses with creative material they have stolen from others."

The bitter battle revolves around Viacom's allegations that YouTube built itself into the Internet's most watched video site by milking unlicensed use of copyright-protected clips stolen from professionally produced show such as Viacom's "The Colbert Report" and "The Daily Show."

The pirated material came from the millions of people who have uploaded clips to YouTube since its 2005 inception. About 24 hours of new video is posted to YouTube every minute.

YouTube's whirlwind success led to the Google sale that generated huge windfalls for the video channel's founders, Chad Hurley, Steve Chen and Jawed Karim.

Citing e-mail exchanges among those founders, Viacom depicted the founders and other YouTube employees as video pirates who were more interested in getting rich quick than adhering to copyright laws.

But Stanton concluded YouTube's actions outweighed the words of the YouTube founders.

In dismissing the lawsuit before a trial, Stanton noted that Viacom had spent several months accumulating about 100,000 videos violating its copyright and then sent a mass takedown notice on Feb. 2, 2007. By the next business day, Stanton said, YouTube had removed virtually all of them.

Stanton said there's no dispute that "when YouTube was given the (takedown) notices, it removed the material."

Since it was sold to Google, YouTube has developed a system that helps flag copyright violations when videos are posted. Viacom argues those copyright detection tools prove YouTube could have done more to keep illegal content off its site.

Kent Walker, Google's general counsel, said the company is confident Stanton's decision will hold up. The 30-page ruling is "thoughtful, thorough and well-considered," Walker said in an interview. He also hailed the decision as "a victory for a new generation of creators and artists eager to showcase their work online," Walker said.

Facebook, eBay Inc. and Yahoo Inc. were among the Internet companies that had backed Google in its battle with Viacom.

The evidence that accumulated before Stanton reached his decision proved embarrassing for both sides.

An early e-mail exchange among Hurley, Chen and Karim showed at least one of them may have knowingly violated copyrights as they posted video clips during the service's early stages.

"Jawed, please stop putting stolen videos on the site," Chen wrote in the July 19, 2005, e-mail. "We're going to have a tough time defending the fact that we're not liable for the copyrighted material on the site because we didn't put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it."

Other documents showed Viacom had hoped to buy YouTube before getting trumped by Google, making it seem as if the media company's later claims of copyright abuse may have been a case of sour grapes.

A July 2006 e-mail from Fricklas, Viacom's top lawyer, even disputed that YouTube was engaged in rampant copyright infringement. "Mostly YouTube behaves," Fricklas wrote."

http://www.huffingtonpost.com/2010/06/23/youtube-viacom-lawsuit-se_n_623256.html