Google Docks In A Safe Harbor

The United States District Court for the Southern District of New York granted summary judgment in favor of Google against Viacom on June 23, in Viacom’s copyright infringement suit against YouTube. Google owns YouTube. Viacom sued, contending that YouTube was guilty of copyright infringement because it regularly induced users to violate copyright protections for, among others, Viacom properties. A federal statute called the Digital Millennium Copyright Act offers a safe harbor to an Internet service provider who allows infringing material to be posted, but who removes the material when properly notified. Viacom argued what might be described as a “come on” position, essentially saying that there is so much infringing material on the site, that YouTube should be charged with knowledge.

The court summed it up like this: “[t]he critical question is whether the statutory phrases ‘actual knowledge that the material . . . is infringing,’ and ‘facts or circumstances from which infringing activity is apparent’ . . . mean a general awareness that there are infringements (here, claimed to be widespread and common), or rather mean actual or constructive knowledge of specific and identifiable infringements of individual items.”

And the court found that the DMCA protection is lost only when the provider has “knowledge of specific and identifiable infringements of particular individual items. Mere knowledge of prevalence of such activity in general is not enough.”

YouTube’s own performance helped its own cause, as the court noted that: “[w]hen Viacom over a period of months accumulated some 100,000 videos and then sent one mass take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them.”

The court also found that the Grokster case did not help Viacom. That case shut down a peer to peer service that touted itself as the second coming of Napster – the notorious peer to peer service that existed solely to infringe copyrighted music.

The Viacom court didn’t see the connection, noting that: “the Grokster model does not comport with that of a service provider who furnishes a platform on which its users post and access all sorts of materials as they wish, while the provider is unaware of its content, but identifies an agent to receive complaints of infringement, and removes identified material when he learns it infringes. To such a provider, the DMCA gives a safe harbor, even if otherwise he would be held as a contributory infringer under the general law.”

So YouTube/Google wins. Apparently, just because a lot of people post infringing work doesn’t mean that any given poster does. And YouTube can’t be liable based on a “general knowledge.” So who says ignorance is no excuse?