Thoughts on Viacom v. Google

The Court of Appeals for the 2nd Circuit finally ruled on April 5, 2012 in the appeal of the Viacom v. Google (YouTube) case, Case Numbers 10-3270, 10-3342. The underlying court case from the Southern District of New York, decided June 23, 2010, was discussed during the talk I gave to IICLE. In that case, Google was granted summary judgment on all claims of direct and secondary copyright infringement due to safe harbor protection under Section 512 of the DMCA. In Thursday’s ruling, the Court vacated the order granting summary judgment because a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website. Further, the District Court erred by interpreting the “right and ability to control” the infringing activity to require “item-specific” knowledge. Certain parts of the lower opinion were affirmed, including that three elements of YouTube’s site fall within the safe harbor, and remanded for further proceedings regarding a fourth element, namely whether YouTube syndicated any of the works at issue in this case to third parties.

There were emails which showed knowledge or awareness by YouTube of certain works, but the record was not clear whether any of the works at issue in the case were among these. The District Court will need to look into these emails on remand.

On remand, the District Court will also need to determine whether YouTube was willfully blind to allegations of infringement, as well as whether YouTube had the “right and ability to control” infringing activity. The Court envisions renewed summary judgment motions on these issues once they are fully developed. Some additional discovery may be needed.

My take on the decision is that this is a good step forward in the case. YouTube won on several issues that shows it generally qualifies for Section 512 immunity. Viacom, et al, won the right to have a further determination of whether there is some liability by YouTube for the infringements of their works on the site. I fully anticipate that either side could prevail in the end; we’ll see what the evidence the Court is asking for shows.

Stay tuned…

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