Viacom vs. Google: Notice and takedown may not be enough for YouTube to escape liability
The American media corporation Viacom gets another chance at receiving $1 billion in damages from YouTube due to copyright infringements. In a long legal conflict on copyrights with Google-owned YouTube, Viacom has gained some terrain on Google in their latest battle. This appears from a ruling by the Second Circuit Court of Appeals, this week. Viacom has consistently held that YouTube is hosting copyright infringing videos and that they should be deemed liable for the damage this causes, because they are aware of the illegal content on their platform. Now the court acknowledges this possibility and gives them an extra change to provide more evidence for their statements.
Already in 2007, Viacom filed a case against YouTube. Viacom claimed that YouTube is liable for the widespread copyright infringement of its content on YouTube. Viacom complained that about 160.000 unauthorised clips from Viacom programs had been posted on YouTube, and viewed about 1.5 billion times. Viacom had sent over 100.000 “notices of illegal content to YouTube and asked for their removal. Viacom argued that YouTube was well aware of the infringing material posted on the website by its users, and therefore was not protected by the Digital Millennium Copyright Act (DMCA). Therefore, Viacom was seeking for $1 billion in damages.
However, in 2010, the U.S District Judge Louis L. Stanton of New York ruled that Youtube’s “mere knowledge” of infringing activity “is not enough.” Furthermore, Stanton stated that “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.” Therefore, the U.S. federal judge ruled that YouTube could be qualified as a service provider under the DMCA. Which means that YouTube falls under the so-called “safe harbor” protection under the DMCA .The latter means that YouTube is not liable for unlawful content from its users, unless they have been informed about the presence of illegal content and do not take rapid action to remove this illegal content from YouTube. This is the so-called system of Notice and Takedown.
This week, the Second Circuit Court of Appeals largely upheld the lower court’s decision from 2010. However, the Court ruled that YouTube might have wilfully turned a blind eye to what its users were doing. This behaviour is not protected by the DMCA, the Court ruled. Therefore the case will return to a district court where a judge will rule whether Viacom has enough information to claim that YouTube had the “right and ability to control the infringing activity and received a financial benefit directly attributable to that activity.”
Read more about this case on FutureOfCopyright.com:
References: The Guardian, Wired
By Deniece Teterissa
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