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Copyright Update: Viacom's Infringement Claims Against YouTube Resonate With Copyright Owners
By Owen J. Sloane and Rachel M. Stilwell
Newly disclosed e-mails sent by founders of YouTube appear to show that those executives made a deliberate decision to build their video distribution business based, in part, on pirated content. A federal court in New York, in Viacom Int'l, Inc. v. YouTube, Inc., Civil No. 07-CV-2103 (LLS) (SDNY), recently unsealed evidence proffered by both parties in Viacom's ongoing copyright infringement suit against YouTube. Evidence offered by Viacom includes emails that may show that YouTube executives knew that unlicensed copyrighted content had been unlawfully uploaded to its service, yet decided to not remove such infringing content. YouTube (now owned by Google), on the other hand, offered emails by Viacom employees that may show that Viacom secretly uploaded content to YouTube for promotional purposes, while publicly complaining about its presence there, thus hampering YouTube's ability to monitor the content.
Google and YouTube have claimed immunity under the Digital Millennium Copyright Act ("DMCA"), arguing that any infringing activity was perpetrated by YouTube's users rather than by YouTube, and that YouTube had no way of determining which content, if any, was unlicensed copyrighted content. Under the "safe harbor" provisions of the DMCA, a service provider that allows content to be made available at the behest of its users can escape "secondary liability" for copyright infringement if it "does not have actual knowledge that the material or an activity using the material on the system or network is infringing;" or "in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent;" or "upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material."
YouTube has long asserted that it has met the requirements for immunity under the DMCA because it, in all cases, promptly removed videos from its site upon receiving takedown notices from copyright owners.
Internet service providers have generally prevailed in copyright infringement cases by claiming immunity under the DMCA. However, based on the evidence unsealed last week, it is possible that YouTube could be found liable for copyright infringement on the basis that it acted with "reckless disregard" by allowing videos to remain on its site even after it actually knew that videos on its site were pirated.
Viacom offered email messages from YouTube's founders discussing what to do about clips uploaded to YouTube that apparently belonged to major television networks. For example, in an email to an outside investor, one of YouTube's founders, Steve Chen, described a system that YouTube put in place for users to flag copyrighted and pornographic content: "That way, the perception is that we are concerned about this type of material and we're actively monitoring it."
Chen also wrote to co-founder Jawed Karim: "Jawed, please stop putting stolen videos on the site. We're going to have a tough time defending the fact that we're not liable for the copyrighted material on the site because we didn't put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it." Google claims that message referred to viral aviation videos, rather than pirated media content.
Chen also wrote an email urging his partners to "concentrate all of our efforts in building up our numbers as aggressively as we can through whatever tactics, however evil."
Some internal Google emails hinted that certain Google executives had reservations about purchasing YouTube due to the extent of infringing activity on the service. A 2006 email from Google product manager Ethan Anderson to Google executive Patrick Walker questioned the recommendation to purchase YouTube, stating, "they're 80% illegal pirated content."
One who "recklessly disregards" a copyright holder's rights, even if lacking actual knowledge of infringement, may be subject to liability for enhanced damages of up to $150,000 per "willful" infringement. Viacom has presented at least some evidence that could lead the court to conclude that YouTube recklessly disregarded the rights of Viacom as owner of its copyrighted content. The Court has not issued a written opinion on the merits of each side's case, but the evidence offered by Viacom may suffice to show that YouTube knew of infringing infringing activity on its site, and failed to remove such infringing content.
This case is being tried in the District Court for the Southern District of New York, so any court opinion will not be binding on courts here in the Ninth Circuit, but the outcome of this high-profile case may nevertheless be persuasive to courts here.
Copyright owners seeking to protect their works from unlicensed online dissemination have generally made successful infringement claims only against individual infringing users. Meanwhile, many large networks have profited handsomely from advertising revenue derived from the enormous traffic driven by infringing activity. Those networks have long claimed immunity under the DMCA, even though in many cases, copyright owners alleged that such networks had good reason to know that much of their traffic was driven by unlawful activity. If YouTube is found liable in its current litigation with Viacom, this precedent may enable copyright owners to make successful claims against the corporate entities who knowingly profit from the traffic generated by infringing users.
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