YouTube qualifies for Safe Harbor provisions and has no general monitoring obligation

Yesterday a US federal judge ruled in the lingering lawsuit between YouTube (Google) and Viacom. The core of the dispute between both parties is whether YouTube qualifies as a service provider under the Digital Millennium Copyright Act (DMCA), the American forerunner of the European e-Commerce Directive. If that is the case, YouTube can address the DMCA regime for exemption from liability for user generated content.

?The judge ruled that YouTube does qualify as a service provider and can claim the associated protective regime. This means that YouTube is principally not liable for unlawful content from users, unless they have been informed on the presence of illegal content and subsequent don’t take rapid action to remove or block access to the referred illegal content. This system is called Notice and Takedown (NATD). The European e-Commerce Directive contains a similar structure.

U.S. District Court Judge Louis Stanton, finds that the current NATD regime works "efficiently”, referring to the example that YouTube answered Viacoms NATD request of 100.000 violating video’s within a single working day, while Viacom took six months to collect the infringing videos.

Judge Stanton also said that under the DMCA, the obligation to identify any infringing content lays with the rights holder and not with any internet service providers such as YouTube. Viacom's claim that YouTube does have this obligation is "the other way around”, according to judge Stanton. Viacom’s claim that copyright infringement on YouTube is ubiquitous, doesn’t change the judges view. General filtering requirements, such as a ban on all works called "Gershwin", would put the whole NATD regime out of function.

Viacom maintains its claim that a website with a business model based on material stolen by others, is illegal. In addition, websites with such business models have a harmful effect on the production of new creative works and distort fair competition with sites that offer legal content only. Viacom is confident it will win the appeal.

Source: The Guardian, ZeroPaid