Viacom v. YouTube, Round One

Viacom sued YouTube for hosting material that Viacom claims infringes Viacom’s copyright. Yesterday, the federal District Court for the Southern District of New York handed down a summary judgment siding with YouTube.

District Judge Louis Stanton’s decision is a model of judicial clarity. It quickly identifies the principal issue in the case and focuses the bulk of the opinion on that issue. As Judge Stanton sees it, the issue is whether YouTube qualifies for the Digital Millennium Copyright Act (DMCA) safe harbor even if it does not itself search out and destroy copyright infringing material without a specific request from a copyright holder identifying the infringing material. The burden, Judge Stanton argues, falls on the copyright holder and not YouTube.  It is clear that there is a substantial amount of infringing material on YouTube, but YouTube does not have the responsibility to remove it without a clearer “red flag”—such as a moniker that it is “pirated” material.  (Not to cavil, but even The Pirate Bay hosts material that is not copyright infringing.)

Judge Stanton’s decision seems a clear and logical interpretation of the DMCA. He spends a great deal of time focusing on the legislative history of the statute as reflected in the legislative reports before Congress.

He does not dwell on some of the sideshow that developed during the discovery, including an email during YouTube's early period in which founder Steve Chen acknowledges that a substantial amount of the material on the site is infringing. That email demonstrated knowledge of infringement, but not the particularized knowledge that the DMCA requires. Otherwise, every web hosting service would be at risk--because copyright infringement is so widespread in cyberspace.

It is too early for YouTube (and us netizens, more generally) to declare victory. The decision is likely but Round One.  Viacom has the resources to continue the challenge on appeal. It might choose not to do so (1) if it believed it too expensive to do so; (2) if it believed that an appeal would risk creating “bad law” from its perspective; (3) if it believed that further publicity for its claim against a beloved website would antagonize its consumers; or (4) the litigation sapped too much executive time and energy.

Assuming an appeal is filed, the Second Circuit Court of Appeals will review the decision below, based as it is purely on an interpretation of law, de novo. That means that Judge Stanton’s decision will receive absolutely no deference. The Second Circuit will review the issue entirely anew.

It is too early to pronounce victory, but Judge Stanton’s decision marks a helpful first step.

Cross-posted on Chander.com.