I was pleased to be a guest on This Week In Law last week, Episode #194, entitled “When Laws Get Weird.”
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.
The news this week has been dominated by discussions of the Stop Online Piracy Act, or SOPA, that had congressional hearings this week. I really liked the following discussions of SOPA: Why I Oppose the Stop Online Piracy Act (SOPA)/E-PARASITES Act Eric Goldman has a great summary of the bill and its problems. Well recommended… Continue Reading
I was pleased to be asked back on This Week in Law, Episode 136. Denise Howell, Jay Monahan of Zynga.com, and Matt Macari of The Verge were the other panelists. It was a lot of fun! Thanks again, Denise, for having me back. Also, for those who may be interested, here is the link… Continue Reading
The recent decision by the United States District Court for the Southern District of California in the Echostar Satellite LLC v. Viewtech case, Civil Case No. 07cv1273 BEN (WVG), 2011 WL 1522409 (S.D.Cal.), is interesting mainly for the amount of statutory damages awarded. The defendants had been manufacturing receivers that circumvented the copy protection in… Continue Reading
In the talk I gave on Monday for IICLE on the Viacom v. Google case, one question I posed was how hypothetically to counsel clients in light of the decision and before the appeal is briefed. I posed two hypotheticals: one being a service provider like YouTube, and the other being a content provider. For… Continue Reading
I’ll be discussing the recent Viacom v. Google decision on Monday, August 23, 2010 on a webcast for IICLE, the Illinois Institute for Continuing Legal Education. To register for the webcast, click here. The webcast will be from 12:00 to 1:00 CST, and is accredited for one hour of CLE in Illinois. Many thanks to… Continue Reading
I’ve been meaning to put these up for a while, here are the slides from the presentation I gave to the Chicago Bar Association’s seminar on website operator liability on May 15, 2009. My presentation focused on the DMCA and discussed four recent cases. thompson-presentation-2009-05-15-10-years-of-the-dmca I’d also like to thank those who submitted pictures for… Continue Reading
It’s been 10 years today since President Clinton signed the Digital Millennium Copyright Act into law. Wired has put together a nice retrospective, available here. They call it a misunderstood law that created the Internet commerce as we know it today. Public Knowledge’s take on the act is here. David Robinson at Freedom To Tinker… Continue Reading
The McCain campaign’s efforts to have YouTube deal with DMCA takedown notices directed to its commercials uploaded to the video sharing site differently from other content owners have been rebuffed. Recent commercials have featured clips taken from CBS News and other news sources, which the campaign argues is a fair use of the material. Rather… Continue Reading