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In April 2012, I reported on the Second Circuit decision reviving a billion-dollar 2 suit filed against YouTube in 2007 by a broad coalition of plaintiffs, including Viacom, Paramount, the Premier League and others alleging that YouTube was insufficiently aggressive against copyright violations on the site, especially in its formative years. In that decision, as I explained, the Court sent the suit back to the trial court to determine "what YouTube knew, when it knew it, and when it decided to stop the [infringement] problem." The question was whether YouTube had failed to abide by the terms of the Digital Millennium Copyright Act, which provides a "safe harbor" from suit for websites if the site:
(A) (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing; (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(B) does 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; and

(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

In a 24-page decision issued Thursday, the Hon. Louis Stanton of the Southern District of New York held that the plaintiffs had not proven that YouTube knew of specific infringements and yet failed to take them down. Over and over again, Judge Stanton explains, it was the plaintiffs' burden under the DMCA to alert YouTube as to infringing content, and not YouTube's obligation to find it for them. He concludes:
Thus, during the period relevant to this litigation, the record establishes that YouTube influenced its users by exercising its right not to monitor its service for infringements, by enforcing basic rules regarding content (such as limitations on violent, sexual or hate material) , by facilitating access to all user-stored material regardless (and without actual or construct knowledge) of it was infringing, and by monitoring its site for some infringing material and assisting some content owners in their efforts to do the same. There is no evidence that YouTube induced its users to submit infringing video,  provided users with detailed instructions about what content to upload or edited their content, prescreened submissions for quality, steered users to infringing videos, or otherwise interacted with infringing users to a point where it might be said to participated in their infringing activity.
The case is dismissed, with costs awarded to YouTube. Given the billions potentially at stake, you know what's next:
Viacom isn’t taking this latest defeat sitting down. “This ruling ignores the opinions of the higher courts and completely disregards the rights of creative artists,” company spokesman Jeremy Zweig said in an email to TIME. “A jury should weigh the facts of this case and the overwhelming evidence that YouTube willfully infringed on our rights.” The company said that it would once again appeal the ruling.

“At this point, I don’t have any idea why Viacom continues to press its point,” [Prof. Eric] Goldman said. “I guess copyright owners are persistent. By 2010, Google had already spent $100 million defending this case. Lord knows how many more millions of dollars the parties have spent since then.”

Originally posted to Adam B on Fri Apr 19, 2013 at 12:20 PM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  lets sue Chrysler for making (5+ / 0-)
    Recommended by:
    Cofcos, JesseCW, Lujane, Edmund Xu, Nova Land

    getaway cars for criminals.....

    Youtube is really aggressive about infringement but they have built a great thing that others misuse.

    If we stopped everybody from using anything somebody used wrongly....

    •  Well, the Plaintiffs' argument was ... (4+ / 0-)
      Recommended by:
      xxdr zombiexx, Lujane, VClib, Nova Land

      ... back when YouTube was trying to get established, it deliberately wasn't so aggressive, as a way of boosting its market share.

      •  i see.. (2+ / 0-)
        Recommended by:
        Lujane, Nova Land
      •  Youtube has always been quick as shit on (5+ / 0-)

        DMCA take-down requests.

        In fact, bogus take-down request, I mean completely baseless, have been used to suppress videos time and again precisely because YouTube has a shit record of investigated the merits of the claims made.

        The only protection is that people who abuse that tactic often over reach far enough to get EFF and the like involved.

        I love you stupid fucking fucks. Now stop poking at the dead cat on the table and get back to the issues.

        by JesseCW on Fri Apr 19, 2013 at 01:13:57 PM PDT

        [ Parent ]

        •  Viacom's best evidence (they thought) (5+ / 0-)
          The plaintiffs begin with evidence that prior to its acquisition [by Google], YouTube reached internal decisions which infringing materials to identify and remove from the site to avoid looking "like a dumping ground for copyrighted stuff and "becoming another big-boys or stupidvideos" (E-mails Jawed Karim, Steve Chen, and Chad Hurley dated Sept. 3, 2005) or "Bittorrent" (E-mail from Chad Hurley to Steve Chen and Karim dated June 26, 2005), without rising drops in "site traffic and virality" (E mails between Jawed Karim, Steve Chen, and Chad Hurley dated Sept. 3, 2005). Thus, YouTube's founders decided to "take down whole movies," "entire TV shows, like an entire family guy episode" (id.), "South Park, and full-length anime episodes," "nudity/porn and any death videos," but to leave up "music videos," "news programs," (E-mail from Brent Hurley to Cuong Do dated Nov. 24, 2005), " sports, commercials" (E-mails between Jawed Steve Chen, and Chad Hurley dated 3, 2005), and "comedy clips (Conan, Leno, etc.)" (Email from Jawed Karim to Steve Chen dated Sept. 1, 2005). YouTube then "disabled communing flagging for infringement" (Viacom Opp. at 41), declined to develop a feature "to send automated email alerts to owners when illegal content was loaded" (Viacom 2010 Br. at 11), and eventually stopped regularly monitoring its site for infringements, deciding instead "to keep substantially all infringing videos on the site as a draw to users, unless and until YouTube received a 'takedown notice' from the actual copyright owner identifying a specific infringing by URL and demanding its removal from the site. (id. at 7).
          •  So the "basis" is that they realized they (0+ / 0-)

            couldn't realistically police the site for copyright infringement, and decided to just do the minimum the law required instead.

            Christ I hope the Supremes toss that specious shit.

            I love you stupid fucking fucks. Now stop poking at the dead cat on the table and get back to the issues.

            by JesseCW on Fri Apr 19, 2013 at 02:38:41 PM PDT

            [ Parent ]

          •  Did Viacom provide YouTube with a copy (0+ / 0-)

            of every single item that might count as copyright infringement? Of course not. YouTube had the duty to take down if given notice. They did that.

            Now we need to change the law to take all copyright away from all corporations. Only people actually engage in the creation of artistic endeavors and copyright needs to be limited to those who actually did the work. I don't know how long copyrights should last (maybe 25 years at most), but there is no reason for them to last longer than the life of the creator(s), nor is there any reason to provide copyright on an item that is no longer being sold.

            Americans can make our country better.

            by freelunch on Mon Apr 22, 2013 at 07:24:42 PM PDT

            [ Parent ]

    •  More like suing Verizon for "allowing" (2+ / 0-)
      Recommended by:
      Lujane, wilderness voice

      people to download copyright protected material through their servers.

      I love you stupid fucking fucks. Now stop poking at the dead cat on the table and get back to the issues.

      by JesseCW on Fri Apr 19, 2013 at 01:15:08 PM PDT

      [ Parent ]

    •  sue Chrysler for (0+ / 0-)

      putting the gas pedal on the right, just like GM

    •  There's probably a snarky response (1+ / 0-)
      Recommended by:
      Brown Thrasher

      Someone could make about gun manufacturers.  Or pressure cooker manufacturers.

  •  And a cheer went out thruout blogland. (3+ / 0-)

    thanks Adam for the good news.

    Too many in this country feel the Constitution should include the 2nd Amendment. And nothing else.

    by blueoregon on Fri Apr 19, 2013 at 12:44:46 PM PDT

  •  Great news. (1+ / 0-)
    Recommended by:
    wilderness voice

    Suits, leave the interent alone.

    The public hates you, and you deserve it.

    Zweig, you are especially a giant tool bag.

  •  Do you read (1+ / 0-)
    Recommended by:

    Great blog.  For some extremely entertaining (and very good lawyering), read there about the travails of Prenda Law, copyright trolls (among other things) who are experiencing the wheels of justice.  Just start at the beginning of the story, and keep reading until you're up to date.  A great way to spend an afternoon.

    •  One Needed Reform (0+ / 0-)

      The law needs some kind of three-strikes-you're-out provision on frivolous copyright-troll lawsuits. If you keep trying to sue the CIA for beaming mind-control rays at you, eventually a judge is going to tell you to go away and never come back, with an enforceable injunction for the latter command -- why should this be treated any differently?

      On the Internet, nobody knows if you're a dog... but everybody knows if you're a jackass.

      by stevemb on Mon Apr 22, 2013 at 08:54:28 PM PDT

      [ Parent ]

  •  I still think it's kind of amazing (1+ / 0-)
    Recommended by:

    that the internet, in any form, has been allowed to exist at all. Think of the net neutrality's astonishing to me that, despite the copyright lobby (RIAA, MPAA, etc) being so powerful, they haven't been able to just ram laws through to contain Youtube, P2P, etc. We do have some powerful allies, such as Google & the hardware makers, which goes some of the way towards explaining it, but not all the way.

    Thanks to the internet, bullshit now travels at the speed of light.

    by nota bene on Fri Apr 19, 2013 at 01:31:08 PM PDT

  •  Because a jury (1+ / 0-)
    Recommended by:
    Nova Land

    Is going to care more for Viacom than Youtube. Where do you think we get our funny, Viacom? Jesus Loves You.

    by DAISHI on Fri Apr 19, 2013 at 01:52:34 PM PDT

  •  This reminds me of (1+ / 0-)
    Recommended by:
    No Exit

    an article I read once about Jimmy Page, who claimed he would walk into music stores in Europe and Asia or thereabouts and take bootleg copies of Led Zeppelin off the shelves. Even he knew the onus is on the owners.

    No Jesus, Know Peace

    by plok on Mon Apr 22, 2013 at 06:36:04 PM PDT

  •  Hooray Second Circuit. (0+ / 0-)

    Hope the Supremes are paying attention.

    LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

    by dinotrac on Mon Apr 22, 2013 at 06:40:49 PM PDT

  •  Great news n/t (1+ / 0-)
    Recommended by:
  •  I just think it's funny (3+ / 0-)
    Recommended by:
    blukat, Brown Thrasher, joynow

    ... how the corporations still treat the New Media like it's the enemy.  People put up clips of movies and TV shows on YouTube, and other people watch 'em, and they're fucking advertising for your product, guys!  It's not a "violation of copyright", it's a big bloody HEY WOULDN'T IT BE COOL TO OWN THIS? sign.  Y'know how many people who've seen clips from Marvel's The Avengers on YouTube already own the movie? ALL OF 'EM! It's just a good convenient place to point out the favorite moments!

    Sigh.  Everything has to be done for absolute maximum profit these days.  Yeesh.

    Tom Smith Online
    I want a leader who shoots for the moon. The last time we had one, we got to the moon.

    by filkertom on Mon Apr 22, 2013 at 07:00:56 PM PDT

    •  The question is... (1+ / 0-)
      Recommended by:
      Bill W

      ... who gets to decide what's smart cross-promotion and what's a violation? The owner or the public?

      •  Intent to profit without permission (0+ / 0-)

        Let me put it to you this way: I have a number of my songs up on YouTube.  Most of them are there by the grace of other people, who have either recorded me in concert or constructed a video using my music as a backdrop.  None of them is for profit, as far as I can tell.  Thus, they are not violating my copyright; they're doing it for fun.  I even specifically give my stuff a Creative Commons license allowing people to do it.

        Now, if one of 'em tried to sell a DVD of my concert without me being involved, yeah, that would be copyright violation, because they would be trying to profit from my work.

        Now, in this specific case, the grand bulk of the populace is not going to cost, say, Marvel/Disney any income by posting a clip from Avengers, because the grand bulk of the populace that would care about such things has already bought the 4-disk collector's set (like I did).  Most of them just want to have access to a cool clip they liked without actually having the DVD/Blu-ray at hand. Just this morning I was watching "They Both Reached For The Gun" from Chicago.  I own it, love it, but I was suddenly in the mood for that song and it was way too much trouble to stop everything, go in the other room, and fire up the DVD player.

        A lot of movies and TV shows aren't on disk yet, and yeah, there are pirates who laugh at the thought of paying for them, but there are just as many (if not more) people who would be happy to buy them if/when they become available.  I downloaded Game of Thrones' first season, and as soon as I had the DVD set I nuked those files.

        Tom Smith Online
        I want a leader who shoots for the moon. The last time we had one, we got to the moon.

        by filkertom on Wed Apr 24, 2013 at 09:27:45 AM PDT

        [ Parent ]

  •  DMCA is a piece of shit legislation (3+ / 0-)
    Recommended by:
    Brown Thrasher, chmood, Adam B

    but not for this. The safe harbor provisions were about the only good thing to come of it, and props to the court for recognizing that is not the aggregator's responsibility to police copyright.

    It is a piece of shit for its anti-circumvention provisions which are used almost exclusively as an end-run around fair use.

    For those who do not know, copyright law allows the use of copyrighted material without license in certain situations. It is an affirmative defense applicable when the material is used for educational purposes, for parody, or for providing excerpts for journalistic/informational purposes. Other types of fair use are media-shifting (say, recording a DVD to your computer hard drive) and time-shifting (recording a broadcast to any media to consume later).

    Provisions of the DMCA negate fair use by making it illegal to circumvent technological anti-piracy measures. As an example, the DVD movies that you watch are encrypted to prevent piracy. Decryption is illegal under the DMCA without specific license to do so. So if you want to use a few clips from that DVD movie for educational purposes, you can't. Its illegal to take those clips because doing so technically circumvents the anti-piracy technology.

    I'm simplifying a lot, but the DMCA was a huge giveaway to the copyright cartels, safe harbor not withstanding.

    “Birds…scream at the top of their lungs in horrified hellish rage every morning at daybreak to warn us all of the truth. They know the truth. Screaming bloody murder all over the world in our ears, but sadly we don’t speak bird.” Kurt Cobain

    by RadicalParrot on Mon Apr 22, 2013 at 07:23:02 PM PDT

  •  YouTube deliberately allowed anonymity (0+ / 0-)

    This is what you get when you allow anonymous users to post videos - without any registration/verification/credit card responsibility.

    2nd Amendment rights do not apply when posting someone else's copyrighted material.

    I would have gone after them on this point - that their business model encouraged infringement and that the sheer volume and frequency of new videos (absent some notification system to copyright holders) made it nearly impossible for copyright holders to police, and , more importantly, YouTube was solely responsible rather than the posters.

    This is my "you can post anything on the internet and not be responsible" rant.

    •  Because (1+ / 0-)
      Recommended by:

      Privacy is illegal?

    •  Pretty sure you mean 1st. (3+ / 0-)
      Recommended by:
      joynow, eparrot, Adam B

      At any rate, the decision doesn't suggest that it's a 1st amendment right to post copyrighted works but rather that YouTube is responsible, under current law, to take down those works (and does) but not to seek them out themselves.

      Their model allows for more infringement, yes, but also freer speech in general. I don't think you can suggest their model was designed to encourage infringement purposefully and maliciously. Nor do I think it's good practice to hold "gathering places" on the Internet responsible for speech of their gatherers. . . That way leads to far less free speech of all kinds.

      YouTube takes down things - quickly by all accounts - and the vids are not usually well hidden (most are named and tagged). All Viacom needs to do is monitor for restricted content. In this day and age, I think that's a reasonable expectation of media conglomerate.

      •  Yep (1+ / 0-)
        Recommended by:
        Adam B

        It would actually be pretty easy for Viacom to write a bot program that would identify 90% or more of the restricted content and 100% of the restricted content that was getting a significant number of eyeballs.

        Want a progressive global warming novel, not a right wing rant? Go to and check out New World Orders

        by eparrot on Tue Apr 23, 2013 at 06:03:55 AM PDT

        [ Parent ]

      •  yeah.. 1st Amendent.. duh.. (0+ / 0-)

        Well, there is a fine line here.

        But, I feel YouTube could have come up with a model that holds the users responsible.. i.e. a deposit that is forfeit when breaking the rules such as posting copyrighted material.

        No one says freedom of speech has to be "free" under every condition and every form of media.

        •  Sure, they could... (0+ / 0-)

          ...but they should not be legally required to, in my view or the courts. No one says free speech has to be impaired for the sake of Viacom either. Personally I wouldn't ever visit or use a site with the kind of bizarre and punitive model you describe. I assume that is why I haven't seen that model used, and that I'm not alone.

  •  Viacom's suit is so worthless. (1+ / 0-)
    Recommended by:
    Brown Thrasher

    Thank goodness the court smacked them down.  The only other alternative would be to shut down not just Youtube, but every website that allows videos to be posted.  

    Or audio files.  Or text.

    It's anybody's guess what would happen outside the USA.  I hear they have the internet out there, too.

    Early to rise and early to bed Makes a man healthy, wealthy, and dead. --Not Benjamin Franklin

    by Boundegar on Mon Apr 22, 2013 at 07:34:12 PM PDT

  •  Copyright is an important concept (1+ / 0-)
    Recommended by:
    Bill W

    If I am a creative artist – a writer, visual artist, musician, videographer, computer programmer – I should get paid for my work. The problem with illegal copying goes back centuries. In the Dark Ages, before the printing press, a monk would sometimes loan a manuscript to another monk and say, “you can read it but you can’t copy it (by hand).” Charles Dickens fought against illegal (or immoral) copying. He’d have a book published in England, then American printers would copy it without paying him a dime -- so the printer made all the money and Dickens got nothing. Mark Twain had problems with people pirating his work. People who create art should get paid for what they create.

    I don’t like doing work-for-hire. I’d rather get royalties, especially if I write something that becomes popular.

    If the creator doesn’t get to hold on to the copyright, then the publishing company (or internet company or software company or whoever) makes money and the artist gets nothing.

    When photocopiers and audiotapes and videotapes and digital copies became available, people were able to make copies of almost anything. One or two copies is fine with me. Twenty years ago I would buy vinyl records and then make a mix tape. No big deal because I owned the record. But it’s a different thing if I’m making 5 million digital copies of book or song or video and selling them to people. That’s piracy. That’s making money from someone else’s creativity.

    I think copyrights are a good thing overall.

    "Stupid just can't keep its mouth shut." -- SweetAuntFanny's grandmother.

    by Dbug on Mon Apr 22, 2013 at 07:42:46 PM PDT

  •  Viacom (0+ / 0-)

    Permitted fanvids for both The Daily Shiw and TheColbert Report until they were doing well enough, that they did wholesale takedowns of ANY video with the tags "Colbert" "Stewart" "Jon" "Stephen" which included home videos of youtubers.   they also waited until other of their shows became popular enough to do the takedowns.  I have no issue with the take down of entire show episodes, but fanvids?

    "My case is alter'd, I must work for my living." Moll Cut-Purse, The Roaring Girl - 1612, England's First Actress

    by theRoaringGirl on Mon Apr 22, 2013 at 10:12:52 PM PDT

  •  I watched the first 10-15 mins. of one (0+ / 0-)

    of the first two or three series-opening episodes - if not the very first episode - and said to myself, "are these guys a bunch of d!cks, or what?!" and have never watched another minute.

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