Safe Harbour for YouTube in the US
25 Jun 2010
YouTube has been granted summary judgment in the US in the long-running $1 billion copyright infringement lawsuit filed against it by Viacom.
Viacom launched the case back in 2007. It claimed that “tens of thousands of videos on YouTube, resulting in hundred of millions of views, were taken unlawfully from Viacom’s copyrighted works without authorisation, and that YouTube had actual knowledge and were aware of facts or circumstances from which infringing activity was apparent, but failed to do anything about it”.
The US District Court for the Southern District of New York held that YouTube was entitled to “safe harbour” protection under the US “Digital Millennium Copyright Act” (DCMA), because it had insufficient notice, under the DCMA, of the particular infringements cited before receiving notices from Viacom and, once it was put on notice, it had removed the offending material. The Court noted that virtually all of the 100,000 videos identified in Viacom’s mass take-down notice of 2 February 2007 had been taken down by the next business day.
The Court held that: “To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA” and that “General knowledge that infringement is “ubiquitous” does not impose a duty on the service provider to monitor or search its service for infringements”.
The judgment must come as a relief to YouTube given the volume of material being uploaded to its site every day – with over 24 hours worth of new videos stated to being uploaded onto the YouTube website every minute.
Viacom has already announced its intention to appeal to the US Court of Appeals for the Second Circuit.
It would be interesting to see how a site such as YouTube would fare in the English courts – and whether, absent any evidence of a common design to infringe copyright or any “authorisation” of infringement, their conduct would mean they were able to take advantage of the “hosting” defence provided for in our 2002 E-Commerce Regulations.
YouTube was quick to post the judgment on its website. Click here to view the decision.