I haven’t been able to write here for some time, but I have been writing elsewhere. Here’s a list of my recent copyright articles, with links. A list of my recent trade mark publications is here, and there’s a full list of all publications here.
The Second Circuit Court of Appeals has just delivered its Opinion in Viacom v. YouTube, and it has held, unanimously, that YouTube is not entitled to summary judgment on Viacom’s $1bn copyright claim. The decision reverses the Southern District of New York’s finding that YouTube didn’t need to go to trial to determine whether it was entitled to safe-harbor protection under the DMCA.
The decision is below. Commentary will follow in due course.
A quick note to mark the passing of 2011 and the start of 2012. Thank you all for reading and commenting here (and on Twitter) on the stories that have been reported on these pages. I’m looking forward to posting much more in 2012.
There has been plenty to contemplate in the last 12 months and we look forward to new challenges and opportunities in the months that lie ahead. Several big IP cases look likely to make their mark next year, including Viacom v. YouTube, The Authors’ Guild v. Google and NLA v. Meltwater, and we may begin to see the fallout of the (UK) Supreme Court’s ruling that foreign copyright claims can be adjudicated in the English courts.
Whatever plans you have for next year, I hope they will be realized, that you enjoy the chase, and that you will be challenged by the work that you do.
YouTube does not cite the relevant DMCA language in its latest series of arguments because it has no answer to it, according to the reply letter brief filed yesterday in the Second Circuit by Viacom and The Football Association (et al.). In October, the parties in Viacom’s $1bn copyright lawsuit against YouTube for historic infringements of its audio-visual works were ordered by the Court to submit further arguments on: 1) whether “storage” under the DMCA includes syndicating files to third parties on commercial terms; and 2) how knowledge of “specific” URLs can be mandated in the DMCA’s “red flag” regime, and they have now completed their filings (here and here). Viacom is seeking reversal of a 2010 decision in which District Judge Louis L. Stanton, sitting in the District Court for the Southern District of New York, sent Viacom’s lawsuit to the cutting room floor without a trial.
The briefs make for interesting reading, and this was certainly Viacom’s most aggressive submission to date. There was plenty in both sides’ filings that I have not found persuasive, or have wholeheartedly disagreed with, but two points have clearly come out. Continue reading »
Fresh off Justia this morning is Viacom and The Premier League’s reply to YouTube’s court-ordered letter brief, as covered here. A copy of the filing in the Second Circuit is below and is well worth a read. Comments will follow later today.
Here’s YouTube’s post-argument brief on the extent of the “storage” exemption from liability under the DMCA, and clarification of how their assessment of knowledge under the statute can operate in a “red flag” regime. Comments will follow in due course, but an initial review suggests a slight rowing back from the position adopted at the hearing, but no real surprises.
File obtained via Justia.
This is pretty big breaking news from New York. After last week’s oral argument in Viacom v. YouTube (2d. Cir. 10-3270), the Second Circuit has reportedly asked YouTube two questions regardings its affirmative defense under 17 U.S.C. § 512(c)(1) (the DMCA) to Viacom’s copyright infringement claims.
According to Twitter GC @amac, from whom I got the story, the Second Circuit has asked:
- whether and how the red-flag knowledge provision [§ 512(c)(1)(A)(ii)] would apply under the Defendants’ “specific” knowledge construction of § 512(c)(1)(A); and
- whether YouTube’s “syndication” of videos to third parties falls outside the scope of safe harbor protection for activities that occur “by reason of . . . storage at the direction of a user” under § 512(c)(1).
The timing for this could have been better though; I submitted an article on the proceedings at 2.00am this morning, which will now have to be amended. Oh well, at least these were the two issues I had thought were going to be difficult for YouTube.
No sign of the questions having been published online yet. As soon as they are I’ll post additional details here.
UPDATE: The Order is now available below, courtesy of Justia. The questions are as stated above. YouTube has until November 1, 2011, to provide its brief; Viacom and the FA must respond by November 8, 2011. The storage question was pretty much skipped over in oral arguments, so I’m pleased it’s being looked at in more detail now (even if the limited scope of the question means the Second Circuit is already with YouTube regarding all acts other than syndication). I thought Viacom’s points about knowledge (i.e. YouTube’s interpretation renders neighboring parts of the statute redundant, so must be wrong) had a lot of force in the briefs and at the hearing, but I’m sure YouTube will have a good response already prepared. Looking forward to reading them next week…
The DMCA should allow businesses to ignore their own conclusions about the extent of copyright infringement on their systems until a copyright owner notifies it of individual, specifically identifiable materials on the site, according to YouTube at today’s summary judgment oral arguments at the Second Circuit in Viacom v. YouTube. In other words, service providers wanting to grow their business should be allowed to “wind it up” and let it go unless and until someone forces them to stop what they are doing. Viacom disputes this, saying such an approach ignores the requirements of §512(c) and would leave copyright holders with the “single, grossly inadequate tool” of takedown notices, which can only operate after the fact.
The arguments before the Court were focussed on whether there was a material factual dispute as to YouTube’s protection under §512 DMCA, or whether, construing all the allegations about YouTube “welcoming” copyright infringing clips to the site in the light most favorable to Viacom, the District Court’s judgment should be overturned and Viacom’s $1bn claim should proceed to trial.
The hearing was good natured, for the most part, but the frustration that must be felt by the parties was evident in those listening in in the pews of the Ceremonial Courtroom. Counsel for the Premier League said YouTube’s arguments required content owners to engage in an “endless whack-a-mole” of takedown notices, Counsel for YouTube called Viacom’s arguments on material fact “just plain crazy”, while Counsel for Viacom described YouTube’s argument that Viacom posting promotional material undermined their position on YouTube’s knowledge was “a red herring”.
Viacom came to Court hoping to overturn the District Court’s finding that, as a matter of law, YouTube is entitled to protection under §512, and that Viacom’s claims for direct, contributory and vicarious liability could not proceed. There was no real discussion about Viacom’s claims at this hearing, and even the §512 argument quickly focussed in on its standard of knowledge and the relationship between §512(c) and §512(m). Financial benefit and “right and ability to control activity” got a mention, but what the statute means by “storage” was not explored. Viacom will hope this indicates that the bench was with them on the other points so that further argument was not necessary. Certainly, the judges seemed to wonder how a factual assessment could be avoided, but YouTube was adamant: even if Viacom could prove all its allegations, as a matter of law generalized knowledge of infringements and a hands-off approach to their continued presence on YouTube does not take them outside the DMCA regime. A sort of “we might have created a monster, and ‘welcomed’ others feeding it, but unless Viacom tells us what foods it should not be eating we have no obligation to do anything”.
So, watch this space, though I think it will be some time before the Second Circuit issues its Opinion. The arguments were finely balanced today, but I thought that Viacom prevailed (just) on paper and that Counsel for the Premier League (et al.) was very persuasive, particularly given the high standard required for summary judgment and the bad taste left by some of the documents cited by Viacom in its brief and to which the judges drew attention. There was a sense that summary judgment was just a step too far, even though YouTube may well prevail at a trial. Certainly, no-one disputed that damages would be almost impossible to accurately calculate, which lead to some not-too-subtle hints, including from the bench, that a settlement might be a good outcome.
I will be publishing a detailed note on the case so far, including a review of today’s oral arguments, in the Winter edition of the New York State Bar Association’s IP Journal “Bright Ideas”. This post may also be updated throughout the day so please check back or follow me on Twitter.
Have you been wondering who is going to decide Viacom’s Appeal against Judge Louis Stanton’s summary judgment opinion in their $1bn lawsuit against YouTube? Me too; and now we know.
The Second Circuit has this morning updated its calendar for next week and informs us that the Panel hearing the appeal at the Federal Courthouse on Pearl St next Tuesday (October 18, 2011) will be Miner, Cabranes and Livingston C.JJ.
So, Judge Denny Chin, who presided over Bernie Madoff’s criminal trial, sentencing him to the maximum 150 years in prison, as well as claims involving the Naked Cowboy, and who earlier this year all but ended settlement prospects in the Google Books litigation, will not be participating in this round of litigation. Google might be pleased about that, given some of the comments made in his GBS order. Continue reading »
BREAKING NEWS – The Court of Appeals for the Second Circuit has just published its calendar for the week beginning October 17, 2011 and it contains what many of us have been waiting a long time to see – Viacom’s appeal against Judge Louis Stanton’s finding that YouTube is a beneficiary of the DMCA’s safe harbors and is not liable to Viacom for third party’s (historic) infringements.
The appeal is set for the morning of Tuesday, October 18, 2011. The Panel has not yet been announced, so watch this space. I wonder if Judge Chin, who last year moved up to the Court of Appeals and counts Bernie Madoff and the Google Books Settlement among his previous
victims cases, will sit for this one.
Viacom has been allotted 12 minutes, with YouTube given the same time to respond (case 10-3270-cv). The joined case brought against YouTube by the Football Association (case 10-3342-cv), follows immediately afterwards, with both sides again having been allotted 12 mins each.