Viacom v. Google – It’s Cool, I Read It So You Don’t Have To.

Yes, I am fully aware that is not a grammatically correct sentence.  However, I think it gets my point across!  If you’re interested in copyright at all (or, if you read any online news source at all), you’re probably aware that Google beat the crap out of Viacom this week in a copyright infringement suit based on the Safe Harbor Provision (17 USC §512).  But what effect does this have on copyright owners?  On the dissemination of information and art on the internet?  Well, I’m going to tell you.  See?  I read the WHOLE opinion so you don’t have to!  And I’m going to attempt break it down in a way that makes sense.  Here goes nothing.

 

Alright, so what the heck is the Safe Harbor rule anyway?  It’s a provision of the Copyright Act that basically allows awesome websites like YouTube to exist.  It basically says that websites and ISPs are NOT responsible for infringing content on their site that’s been uploaded by users as long as they comply with the following: 1) They need to have a way for copyright owners to submit information to the site detailing the infringing content; 2) the communication to the site must be “written,” 3) it must describe the content to such a degree that it can be reasonably identified by the site admins; 4) Once notified, the site must try and find it and, when they do, delete the content.  If they do, they’re given “safe harbor” from being responsible for the infringement. 

 

Now that we’ve got that down, here’s some VERY important holdings that the Supreme Court handed down.

 

1)    Safe Harbor is Determined on an item-specific basis;

2)    ISPs and sites have no active duty to seek out infringing content;

3)    “mere knowledge” of prevalence of infringement is NOT enough.

 

In the rule, it states:

 

“Whether a service provider qualifies for the limitation on liability in any one of those subsections that be based solely on the criteria in that subsection, and shall not affect a determination of whether that service provider qualified for the limitations on liability under any other such subsection.”

 

When this was written, it probably meant “look ISPs – you don’t get a free ticket to ride just because you qualify once.  You have to do this EVERY TIME.”  But, the Supreme Court said, it works the other way around, too: “Presently, over 24 hours of new video-viewing time is uploaded to the YouTube website every minute.” (Emphasis added.)  YouTube has been consistent with taking down infringing works every time they receive a notification; indeed, later in the case, the Court notes that Viacom sent a list of over a hundred thousand of individual violations – and by the next day, almost ALL of them were gone.  Here’s the key: the Court said that a “general awareness” of infringements is NOT enough to take sites and ISPs outside of Safe Harbor.  The actual or constructive knowledge of infringement must be “specific and identifiable.”  YouTube has no active duty to track down infringement, even if they have a general idea that it exists on their site.

 

The Court then talks at length about the interesting legislative history around the rule, demonstrating a clear attempt by the Senate to balance the rights of copyright holders and the expansion of the internet and information. 

 

“Copyright owners will hesitate to make their works readily available on the Internet without reasonable assurance that they will be protected against massive piracy….At the same time, without clarification of their liability, service providers may hesitate to make the necessary investment in the expansion of the speed and capacity of the Internet.”

 

Safe Harbor is about protects sites and ISPs – NOT copyright owners.  It is copyright owners that hold (and always have held) the active duty to seek out infringers.  The Court is refusing to shift that burden on ISPs simply because they provide the ability to disseminate content – both infringing and legitimate content.  Says the Court: “a service provide need not monitor its service or affirmatively seek facts indicating infringing activity…”  They need only be aware of “red flags,” which they DO need to address – they can’t turn a “blind eye.”

 

Furthermore, stated the Court:

 

“The provider could not be expected, during the course of its brief cataloguing visit, to determine whether the photograph was still protected by copyright r was in the public domain; if the photograph was still protected by copyright, whether the use was licensed; and if the use was not licensed, whether it was permitted under the fair use doctrine.”

 

So, it’s officially and legally not the JOB of the ISPs to search for legit content on behalf of copyright owners.

 

It’s also not enough that YouTube might have had “general knowledge” that infringement occurs on their site.  Stated the Court, “[to] impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.”

 

The DMCA is designed to provide a streamlined, focused way to ISPs to regulate content – it’s not meant to impose burdensome active duties upon them.

 

The Court also distinguished YouTube from Grokster, who actively facilitated P2P file sharing – which actually always necessitates infringement because users do not have the authority to copy their own CDs.  In contrast, YouTube provides the ability to upload content, much of which IS legitimate.  Providing “’such means of facilitating user access to material on its website’ do[es] not cost the service provider its safe harbor.”

 

Now, Viacom alleged that YouTube had the “right and ability” to control the content, which is a standard for vicarious infringement.  However, the Court (rightly, in my opinion) pointed out that “the ‘right and ability to control’ the activity requires knowledge of it, which must be item-specific.” 

 

So there you have it.  Obviously this is an extremely truncated version of the entire opinion, but, in MY opinion, it’s the real meat.  In so many words, the Court was like “Dude, copyright holders, step up to the plate.  It’s not YouTube’s duty to comb their site 24/7 for your content.  It’s yours, so you do it.”  The Safe Harbor rule is very clear (for a law, that is), and YouTube has been diligent about following it.  So that’s that.

 

I think it’s very difficult to determine how this is going to affect content uploading and content-providing sites.  I think it’s pretty clear that Google is basically the Master of the Universe (yes, like He-Man… only with less loincloth and more music videos), and, at this point, it’s going to be damn-near impossible for anyone to successfully sue for them copyright infringement as long as they keep following the same protocol they follow now. I must, indeed, applaud their legal team.  Their arguments make perfect sense to me, and it’s simply unrealistic – and a detriment to the advancement of technology – to have found any other holding.  I think other outlets will pop up and try to find a middle ground between Grokster and YouTube, and that we’ll have more cases in the future refining these findings.  Until then, YouTube is safe.  And thank god, because I’m kind of in the mood to watch David after Dentist.  Or an illegal copy of a Carrie Underwood video.      

 

 

 

 

 

 

 

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