YouTube Is Very Appealing

In more ways than one. And it is involved in a legal appeal in the United States Court of Appeals for the Second Circuit that may be a “bet the company” kind case. Last year, Viacom sued YouTube, claiming that YouTube engages in massive copyright infringement. YouTube defended its actions on the basis of the safe harbor provision of the Digital Millennium Copyright Act. That federal law protects an internet service provider from liability for allowing third parties to post infringing material unless the service provider has actual knowledge of it, or “facts and circumstances” make the infringing activity apparent. Viacom argued that YouTube had to have general awareness of the infringing material on its site, simply because there is so much of it. But YouTube convinced the trial court that general awareness is not enough. The law requires “item-specific” awareness, and a failure to take down the material in the face of that awareness. On that standard, YouTube wins because it does respond to specific complaints. In Viacom’s view, that standard puts too great of a burden on it to ferret out every infringement. But for now that’s the law. And that interpretation is critical to YouTube’s business model. If the Second Circuit reverses, and that burden shifts to YouTube, it will have a major impact on what it can do going forward.